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OFCCP: Ask the Experts
OFCCP Ask the Experts
OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS
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.
I wanted to clarify Executive Order 13706 on paid sick leave for federal contractors. We are not sure we fall under the requirements. We are a collection agency contracted by the department of Education collection on defaulted student loans. The SCA wages do not state it as a required benefit and the Ex Order states that it applies to new contracts and replacements effective 1/1/2017. Our contract was initiated November 2016. It also states it applies to federal contracts for construction and “many types of federal contracts for service.” We didn’t feel it applied to us. But now we are wondering if it does or if we should implement it to error on the side of caution. I would love to hear your thoughts on this matter. Thank you for your time in advance!
Executive Order 13706 is enforced by the Wage and Hour Division, and is not under OFCCP enforcement. This Executive Order applies to new and replacement contracts with the federal government “that result from solicitations issued on or after January 1, 2017 (or that are awarded outside the solicitation process on or after January 1, 2017)."
This covers contracts that fall under the following major categories:
1. Procurement contracts for construction covered by the Davis-Bacon Act (DBA) 2. Service contracts covered by the McNamara-O’Hara Service Contract Act (SCA) 3. Concessions contracts, including any concessions contracts excluded from the SCA by the Department of Labor’s regulations at 29 CFR 4.133(b) 4. Contracts in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public 5. Any subcontract of a covered contract that (like the upper-tier contract) falls into one of the above four categories
That said, the Rule will still apply to a contract in effect before January 1, 2017, if it is renewed, extended, or amended on or after January 1, 2017.
The best approach for you would be to contact the Wage and Hour Division or consult with an AAP attorney to determine whether your company is subject to the requirements of EO 13706 based on the specific contract that you have.
Record-keeping requirements for temporaries and direct hire placements
Asked by Anonymous - May 25, 2017
First, I like some further clarification on whether Protected Veteran and Disability status needs to be collected on temporary hires as well as direct hire placement referrals that are sent over from a third party staffing firm. For temps, we've only been collected race/ethnicity and gender, so should we have our approved third party staffing firm vendors begin to collect the Protected Veteran and Disability Status information via our form for the Vets and OFCCP's form for the IWD's. Please clarify.
Secondly, we are currently collecting most direct placement hire self-Id info, including Protected Vets and Disability status via our ATS, however, I recently learned that we are not directing all of those referrals to apply online directly to the position, even though they meet the Basic Qualifications, but may not have the exact preferred skills and experience we are looking for. This results in us not capturing their Self-Id information anywhere nor do we ask out third party staffing firm to track or provide that information to us. That being said, do you recommend that I advise our TA team to have any third party referrals that meet BQ's, which are all be directed to our website to apply directly to the position? Currently we are just having those that either are being phone screened and/or interviewed, however, still were initially reviewed by either a Recruiter or Hiring Manager on our end.
Yes to both questions. Federal contractors are responsible for ensuring that their third party vendors are collecting the self-ID data for race, gender, veterans, and individuals with disabilities. Likewise, it is incumbent on the federal contractor to solicit this data for all candidates who meet the minimum qualifications. Having them apply to the website is a good way to accomplish this.
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Jun 04, 2017
Yes to the first question. The regulations enforced by OFCCP specifically state that, "The use of an employment agency does not relieve an employer or labor organization or other user of its responsibilities under Federal law to provide equal employment opportunity or its obligations as a user under these guidelines." Title 41 CFR Sec 60-3.10. That means that any obligation a company has, remains regardless of whether the company uses a third party service to assist with hiring. It makes sense if you think about it - the rules are the same regardless of how you get to the finish line.
To the second question, yes, if that helps you capture the required data. The company is obligated to collect it. Soliciting the self-ID information at the point of application is required and critical to be in compliance, so if applicants directed to the company website will accomplish this, that is likely to be a good choice.
Tracking of Race & Gender of applicants
Asked by Anonymous - May 25, 2017
What is the recommendation for implementation of OFCCP DIR 2008-02?:
FIELD ENFORCEMENT GUIDANCE: Compliance Officers should adhere to the following principles when evaluating the use of race and ethnicity categories in the AAPs prepared by federal contractors in accordance with the Executive Order, as amended:
A.Contractor data tracking responsibilities remain the same.(4) Accordingly, self–identification will remain the preferred method for compiling information about the sex, race or ethnicity of applicants and employees. A contractor’s invitation to self–identify race or ethnicity should state that the submission of such information is voluntary. However, contractors may use post–employment records or visual observation when an individual declines to self–identify his or her race or ethnicity.(5)
Specifically, this statement:
However, contractors may use post–employment records or visual observation when an individual declines to self–identify his or her race or ethnicity.(5)
We do want to better understand how applicants are progressing through our process and where they are dropping off. Our ATS does allow us to update race/gender. When someone has opted for "I choose not to disclose" on the electronic application, we can update race/gender in the ATS, and there is an audit trail showing that we did so. This would be valuable for us from a data/analytics perspective, so we can target where we may be losing candidates of various protected statuses and target our efforts accordingly. But is this a good practice? Is it better to leave candidates in an unknown race/gender than to use visual observation to update this information?
As you note, the regulations allow visual observation when an individual declines to self-ID. As you also point out, using visual observation provides the data needed for analysis. So, if you want to have the most accurate assessment of where candidates are falling out of the process, visual observation is going to be helpful. While OFCCP does not require employers to use visual observation, they have been known to cite contractors when the rate of unknowns is extremely high, as it often indicates that the contractor is not making a best effort in the process of inviting candidates to self-ID.
EEO tagline - shortened & requirements
Asked by Anonymous - May 23, 2017
We are currently posting the following on your site, and have recently starting working towards posting this consistently on all our sites:
“[Our company name] considers applicants for all positions without regard to race, color, creed, religion, sex, age, national origin, marital status, status with regard to public assistance, disability, or sexual orientation. All applicants will be considered solely on the basis of their qualifications.”
However, some of the sites we post on require us to pay per word or per character, so our recruiting team, in an effort to save money or use it on the “meat” of the post, are wondering about shortening this for those sites only. I do know that we can shorten it but want to ensure there we are both compliant with the law and consistently post the important portions of it.
Do you happen to have suggestions on wording that is short but still covers it?
Also, shouldn’t we be including gender identity in the list?
I’m working on revising the full statement to be consistent and all-inclusive in all places we list it. Do you have other suggestions of things that would/could be added or otherwise changes?
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - May 23, 2017
Yes, you are correct that you need to make some changes to your tagline. The example above is missing two required groups: gender identity and protected veterans. According to the OFCCP FAQs on its website, "Under OFCCP’s regulations, contractors may either state that they do not discriminate on any of the protected bases under Executive Order 11246, and list them all, or they may simply use the phrase “equal opportunity employer.” If electing the first option, contractors are required to add “sexual orientation” and “gender identity” to the list of bases on which discrimination is prohibited." The OFCCP further provides an example of a tagline, "“Equal Opportunity Employer–minorities/females/veterans/individuals with disabilities/sexual orientation/gender identity.” It's always a good idea to seek advice and not rely solely on the FAQs, but in this case, the tagline example is sufficient. Be careful about any abbreviations you might consider as those might put your company at odds with compliance requirements.
Hiring a short term temporary employee
Asked by Anonymous - May 18, 2017
We are looking to hire a short term, temporary administrative assistant for a 4 day engagement. Does this type of temporary need require a full recruiting process if we have a candidate in mind?
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - May 18, 2017
The process needs to meet the Equal Opportunity Clause requirements since it is a four day engagement (three days or less are exempted). I do not know what your company's "full recruiting process" is, but it is perfectly acceptable for different jobs or different circumstances to lead to different recruiting processes, so long as there is neither actual discrimination, nor the appearance (as the appearance may be defensible, but still lead to trouble with the OFCCP). So long as there is a sound business reason, the decision is made before candidates are recruited and there is no adverse impact, it is not likely to be a problem. Simply put, it is very likely that the process for temporary admin position is very different from recruiting a new CEO or other senior leadership, and that is absolutely reasonable. Please follow up if this does not provide enough clarification for you!
EEO tagline statement on every job ad?
Asked by Anonymous - May 04, 2017
I am new to my company and realized that our company website uses the proper tagline. However, it is not being put onto every open job ad. Does it need to be, or are we covered by having it on the website? Related, when we post positions on social media such as LinkedIn or Facebook, we are not considering them to have applied until they go to our website and fill out the company application. As such, we are not putting the EEO tagline on those postings. I believe we should be. Can you verify that is correct?
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - May 04, 2017
According to the regulations enforced by the OFCCP, contractors are required to include language that "all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin" (the tagline) in "all solicitations or advertisements." So yes, your instincts are correct. The proper language needs to be in place in every advertisement, whether it is social media or another site, not just upon application on the company's website. One can never go wrong including the tagline, so I would encourage you if there is a situation where you may be in doubt, to include it. Please let me know if you need additional information!
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