OFCCP Ask the Experts
Ask the Experts is an online forum where federal contractors and subcontractors are invited to submit questions to industry experts related to OFCCP compliance, affirmative action planning, and equal employment opportunity. Simply register your company on LocalJobNetwork.com to submit a question.
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  • Affirmative Action Plan upon request to the Public
    Asked by Moni P. - May 08, 2019
    We recently had a request from a certain minority group to provide the number of employees we employ of a certain ethnic background in certain positions with in our organization.

    I understand that we are required to make available for inspection IWD and Protected Vets for applicants and employee? I don't see anyway in the regulations that says it is for the public or to disclose ethnicity of a certain job group?

    Can you give us some guidance or best practice?
    Answered by Bill Osterndorf from HR Analytical Services - May 09, 2019
    It is accurate that if you are covered by the affirmative action law for individuals with disabilities, you must make all parts of that AAP except the data components available for review to applicants or employees. It is also accurate that if you are covered by the affirmative action law for protected veterans, you must make all parts of that AAP except the data components available for review to applicants and employees. You are not required to provide copies of the AAPs to applicants or employees, and you are not required to provide the data components of the AAPs to anyone except OFCCP.

    Executive Order 11246 does NOT have a parallel provision requiring the disclosure of information in that AAP. It may be good practice to make your affirmative action/equal opportunity policy statement available to applicants and employees, and there may be other policies associated with the Executive Order AAP that you might want to make available to demonstrate your commitment to affirmative action and equal opportunity. However, you are technically not required to make ANY part of the Executive Order AAP available to applicants or employees or outsiders of any kind other than OFCCP.

    You should tell the minority group that has approached you that the Executive Order AAP contains a variety of trade secrets and other information by law, and thus you are not in a position to provide the AAP to them.

  • Contingent Positions & VEVRAA
    Asked by Anonymous - Apr 25, 2019

    Are we required to post our contingent positions with the local ESDS? We often bid on work in states where we do not currently have ESDS accounts or employees currently working. Do we need to post in those states for VEVRAA compliance even though we may not win the work and fill the position?

    Thank you!
    Answered by Roselle Rogers from Local JobNetwork™ - May 06, 2019
    §60-300.5 Section 2 of the Equal opportunity clause, which sets forth the mandatory job listing obligation for federal contractors states that “The contractor agrees to immediately list all employment openings which exist at the time of the execution of this contract and those which occur during the performance of this contract, including those not generated by this contract and including those occurring at an establishment of the contractor other than the one where the contract is being performed, but excluding those of independently operated corporate affiliates, with the appropriate employment service delivery system where the opening occurs.”

    It further defines what it means by “all employment openings” and states that this “…includes all positions except executive and senior management, those positions that will be filled from within the contractor's organization, and positions lasting three days or less. This term includes full-time employment, temporary employment of more than three days' duration, and part-time employment.”

    The listing obligation is triggered when a company enters into a federal contract that meets the VEVRAA coverage threshold. So the answer to your question would depend on whether your company already has other active federal contracts covered under VEVRAA. If you do, then that listing obligation exists now, whether your company is awarded this new contract or not, and you will have to list all of your job openings, unless they fall within the three excluded categories mentioned above.

    If this is your company’s first federal contract covered under VEVRAA, your company is under no obligation to list them now because technically, you are not a federal contractor at the moment. Coverage, and the associated obligations, start when you enter into a federal contract.

    That said, if you are recruiting now in anticipation of being awarded the contract, and eventually obtain it, you will need to think about whether you will have enough time to list the job with the ESDS, request the priority referral of veterans, and conduct outreach, as you will still need to provide proof of compliance with these obligations.

  • Candidate Evaluation Form
    Asked by Rachel D. - Apr 24, 2019
    Do you have any advice to provide when selecting interview evaluation questions? The hiring manager will be required to answer these questions for all applicants following each interview and ultimately will show how they got to their hiring decision for example:

    Did applicant demonstrate required skills for the position: Yes/No
    Is the applicant a good fit for the team: Yes/No
    Does applicant values/goals align with company values/goals: Yes/No
    Move forward: Yes/No

    Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Apr 24, 2019
    Thank you for posting additional information. From an objective perspective, the only relevant question is the first one. If the applicant does not possess the required skills, then the company should not move forward. If it moves forward with an applicant that does not have the required skills, then those skills are not required for the job and should not be part of the screening process. A "good fit for the team" and "Does applicant values/goals align with company values/goals" cannot likely be adequately defined to survive an audit.

    The evaluation of an applicant should only be based on required elements for the job. There are a number of pitfalls in a situation like this, but it can be done well. It seems what you are trying to do is get a record of why the applicant was screened out during the interview, which is great. I recommend that you ensure your hiring team is properly trained (as required by the regulations) in the EEO obligations of the company and that each understands the Uniform Guidelines. Selection criteria that cannot be defined, such as "poor fit," should be avoided. The hiring team could certainly answer questions regarding what appropriate qualifications the individual did not possess. Let me know if you need more info.

  • Compliance
    Asked by Phillip M. - Apr 23, 2019
    We are a small sub-contractor (9 employees) in the Intelligence Community. How far does the OFCCP go to enforcing compliance, if at all, for a company of this size?
    Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Apr 24, 2019
    All companies (within the U.S.) that contract with the federal government that have contracts or subcontracts in excess of $10,000 are subject to the requirements of Section 503 and the Executive Order. While an AAP is not required for a company with under 50 employees, other obligations still apply (see language below from the OFCCP's website). I would recommend that your company implement compliant record keeping procedures.

    The Executive Order prohibits federal contractors and federally–assisted construction contractors and subcontractors, who do over $10,000 in Government business in one year from discriminating in employment decisions on the basis of race, color, religion, sex, sexual orientation, gender identity or national origin. The Executive Order also requires Government contractors to take affirmative action to ensure that equal opportunity is provided in all aspects of their employment. Additionally, Executive Order 11246 prohibits federal contractors and subcontractors from, under certain circumstances, taking adverse employment actions against applicants and employees for asking about, discussing, or sharing information about their pay or the pay of their co–workers.

  • Types of OFCCP reviews
    Asked by Eileen M. - Apr 22, 2019
    With the release of this year's CSAL (Corporate Scheduling Announcement List), I have noticed that the different types of reviews seem to overlap. What are the differences between CMCE Reviews, Compliance Checks and Establishment Reviews?
    Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Apr 24, 2019
    An Establishment Review is equivalent to an audit. It would cover compliance with all laws and regulations (E.O. 11246, Section 503, and VEVRAA)enforced by the OFCCP. CMCEs are similar to an Establishment Review in that they cover the full scope of a contractor’s compliance as stated above, but at the corporate level. Section 503 Focused Reviews cover only those obligations in one area, i.e., Section 503 of the Rehabilitation Act of 1973. However, if other violations are found, the agency could consider expanding the investigation.

    The Section 503 Focused Reviews are scheduled at the headquarters of multi-establishment companies and will be conducted onsite. The other reviews (Establishment and CMCE) do not necessarily require an onsite.

    A Compliance Check determines whether a contractor maintains records consistent with their obligations.

    According to the OFCCP's website, OFCCP will not begin conducting the onsite portion of the Section 503 Focused Reviews until September 1, 2019 to allow contractors sufficient time to seek technical assistance from OFCCP’s regional and district offices.

  • Section 503 Communication Question
    Asked by Martha S. - 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 by Lisa Kaiser from The Kaiser Law Group, PLLC - Apr 24, 2019
    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.

    "Because we do business with the government, we must reach out to, hire, and provide equal opportunity to qualified people with disabilities. To help us measure how well we are doing, we are asking you to tell us if you have a disability or if you ever had a disability. Completing this form is voluntary, but we hope that you will choose to fill it out. If you are applying for a job, any answer you give will be kept private and will not be used against you in any way. If you already work for us, your answer will not be used against you in any way. Because a person may become disabled at any time, we are required to ask all of our employees to update their information every five years. You may voluntarily self-identify as having a disability on this form without fear of any punishment because you did not identify as having a disability earlier."

    It is required that all covered contractors communicate tier obligation to engage in affirmative action efforts to employ and advance in employment qualified individuals with disabilities by including the policy in the contractor's policy manual or otherwise make the policy available to employees.

    Hope this helps.

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