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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  • What are the laws around issuing Writing Tests
    Asked by Anonymous - Oct 17, 2016
    We have a position which requires strong writing skills, and the Hiring Manager would like to issue a writing test. In HR's opinion, we feel that reading and ranking a writing test would be very subjective and potentially could lead to a candidate claiming discrimination given that the test results are not black and white and cannot be validated. Can you please share how widespread the practice of issuing Writing Tests are and how to do it safely and legally if it is not seen as a discriminatory practice?
    Answered by Carey Freitag from Local JobNetwork™ - Oct 20, 2016
    Pre-employment testing is a selection tool that can provide valuable information to assist with selecting the most qualified applicant for a particular job. In certain fields, such as Public Relations, knowing the writing skills of an applicant is critical and the company may ask applicants to prepare a press release as part of the interview process.

    The use of selection tools, however, may violate the federal anti-discrimination laws if they disproportionately exclude people in a particular group by race, sex, or another covered basis, unless the employer can justify the test or procedure under the law. No selection tool should be implemented without an understanding of its effectiveness, its appropriateness for a specific job, and whether it can be appropriately administered and scored.

    There is always a risk when implementing pre-employment testing. The testing needs to be valid and reliable. Employers should be consistent in their use of the testing and avoid creating an adverse impact, either intentionally or unintentionally, on any particular group.

    The EEOC has published a fact sheet setting forth its view on pre-employment testing that you might find useful.

  • Documenting Searches
    Asked by Anonymous - Oct 17, 2016
    Recruiters source for candidates within our own Applicant Tracking System (searching for candidates from all of the positions candidates have ever applied to using key word searches versus JUST looking at the candidates that have applied for a given position). In addition, we also search for candidates on LinkedIn and CareerBuilder and reach out to them and send them the link to apply if they are interested. What are the rules for documenting searches per OFCCP?
    Do we have to document when we search for candidates:
    1.) within the pipeline of the position to narrow down the pool of candidates to find those who are the best fit, and/or
    2.) when we search within the database of our entire database at large to find candidates who applied for other openings that might be a fit, and/or
    3.) when we search within LinkedIn, and CareerBuilder, etc.

    And are there rules for how and where to document?
    Thank you!
    Answered by Roselle Rogers from Local JobNetwork™ - Oct 17, 2016
    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 you are searching your own applicant tracking system as you described, you are essentially conducting an internal resume database search. The records you need to keep for internal resume database searches 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 the database was made
    • The date of the search for each search conducted
    • The substantive search criteria for each search conducted – such as experience, degree, location, industry, and key words used

    When you are searching other websites such as CareerBuilder, you are conducting an external resume database search. The records you need to keep for external resume database searches are as follows:

    • A record of the position for which each search of the database was made
    • The date of the search for each search conducted
    • The substantive search criteria for each search conducted – such as experience, degree, location, industry, and key words used
    • The resumes of job seekers who met the basic qualifications for the particular position who you considered for the position. You are not required to maintain the resumes of individuals if you did not consider them for the position. You are also not required to maintain a record of searches that do not produce candidates that meet the basic qualifications.

    When you are selecting from within the applicants who have applied to the position, you are required to keep a record of any tests, test results, and interview notes. While there is no OFCCP requirement for contractors to use disposition codes, it is in the contractor’s best interest to use strategic disposition codes that record all of the following:

    • The stage in the selection process when the candidate was removed from consideration for the position
    • The reason for removing the candidate from consideration
    • The person who made the decision to remove the candidate from consideration

    For more guidance on this topic, see OFCCP’s Frequently Asked Questions on the Internet Applicant Recordkeeping Rule.

  • Are there requirements on how long a job MUST be posted?
    Asked by Anonymous - Oct 14, 2016
    We are considering developing a firm policy around how long our positions will be posted. I have some concerns about holding us to a minimum number of days that a posting will be live both internally and externally. Does the OFCCP REQUIRE a certain amount of time for postings? I was advised per an AAP attorney, that we should require our positions be posted for a minimum of three days externally and 4-5 days internally, but I didn't think there was anything REQUIRED by OFCCP around posting requirements. I'm confused! Please advise.
    Answered by Roselle Rogers from Local JobNetwork™ - Oct 17, 2016
    The Equal Opportunity Clause of the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA) states that: “Listing of employment openings with the appropriate employment service delivery system pursuant to this clause shall be made at least concurrently with the use of any other recruitment source or effort and shall involve the normal obligations which attach to the placing of a bona fide job order, including the acceptance of referrals of veterans and nonveterans.”

    This means that a contractor must list or post their jobs with the Employment Service Delivery System (ESDS) as soon as they start recruiting for it, and keep the posting active until it is filled. It does not necessarily specify a minimum or maximum number of days that jobs must be posted.

    That said, this doesn’t mean that a contractor cannot post a job for a longer period of time than what the law requires. You should also keep in mind that the answers provided here on Ask the Experts are of a general nature and should never be substituted for legal advice. Your attorney knows your company’s specific situation and circumstances more, and may have valid reasons for advising you to list your jobs for a certain period of time. I would follow your attorney’s advice because he/she knows your situation best.

  • What Contractors Are Covered under EO 13706
    Asked by Kathy B. - Oct 13, 2016

    My colleague attended the March 2016 webinar presented by Cara Crotty. Cara discussed "What Contractors Are Covered" and as a financial institution I don't believe that we meet the requirements but I've heard conflicting advice regarding banks.

    Do you think that banks are required to provide Paid Sick Leave according to Executive Order 13706?

    Answered by Roselle Rogers from Local JobNetwork™ - Oct 21, 2016
    There have been conflicting opinions about this. The Wage and Hour Division staff, the agency which is responsible for enforcing this Executive Order, are saying that this only applies to federal contractors who fall under the following:

    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

    The issue is that OFCCP has historically maintained that banks and financial institutions who have entered into an agreement for Federal Deposit Insurance Corporation (FDIC) insurance are also covered federal contractors under the regulations it enforces.

    The best thing to do would be to consult with your AAP attorney to determine whether your company is subject to the requirements of EO 13706.

  • Executive job posting
    Asked by Anonymous - Oct 12, 2016
    Are companies required under OFCCP to post Executive level jobs (VP and higher)
    Answered by Roselle Rogers from Local JobNetwork™ - Oct 13, 2016
    The Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) requires federal contractors to list all employment openings with the state ESDS with the exception of: (1) executive and senior management positions, (2) those positions that will be filled from within your organization, and (3) positions lasting three days or less.

    VEVRAA describes "executive and senior management" to mean: (1) Any employee (a) compensated on a salary basis at a rate of not less than $455 per week (or $380 per week, if employed in American Samoa by employers other than the Federal Government), exclusive of board, lodging or other facilities; (b) whose primary duty is management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof; (c) who customarily and regularly directs the work of two or more other employees; and (d) who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight; or (2) any employee who owns at least a bona fide 20-percent equity interest in the enterprise in which the employee is employed, regardless of whether the business is a corporate or other type of organization, and who is actively engaged in its management.

    If your positions meet that definition, then you are not required to list those positions with the state ESDS.

  • Vendor Refusing EO Clause
    Asked by Anonymous - Sep 30, 2016
    We are a federal contractor and have asked a vendor to include the EO clause in a contract. They have asked to use the language below instead of the mandated EO clause. Is this acceptable?

    "[Vendor] agrees that it will not discriminate against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin."
    Answered by Roselle Rogers from Local JobNetwork™ - Oct 05, 2016
    First, check to make sure that your contract falls within the jurisdictional thresholds of EO 11246, VEVRAA, and Section 503. Each of these regulations requires the incorporation of an EO clause in all covered subcontracts to make sure that the nondiscrimination and affirmative action obligations flow down to subcontractors. You can combine and incorporate these into the subcontract by reference, but you will have to use the following language, in bold text, after you cite the regulations, and preserve the prescribed content of the veteran and disability EO “incorporation by reference” clauses:

    This contractor and subcontractor shall abide by the requirements of 41 CFR 60–1.4(a), 60–300.5(a) and 60–741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability or veteran status.

    A similar question on the EO clause has been answered in this forum by Bill Osterndorf before. I would encourage you to check out his response as well. You can do a quick search for the related question by entering “EO clause” in the keywords field at the top of this page.

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. The Local JobNetwork™ 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.