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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.
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.
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?
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)
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."
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.
First Right of Refusal
Asked by Anonymous - Sep 27, 2016
We recently won a contract that has a "first right of refusal" clause. Do those who have first right of refusal still have to submit their resume online?
I am assuming you are referring to EO 13495, “Nondisplacement of Qualified Workers Under Service Contracts” which applies to federal government service contracts. The EO requires that qualified workers be given the right of first refusal for employment with a successor contractor. If you are the successor contractor, you may not hire any new employees under the contract until this right of first refusal has been provided.
You are not required to offer them the same position, but only for one that they are qualified. How you would determine this is up to you. If you ask them to submit a resume to evaluate their qualifications, you need to make sure you apply this practice consistently.
In determining whether one is qualified for the position, the general rule is that if they have been performing the job before, you should assume that they are qualified for the position unless there are some records from the previous contractor that would prove otherwise.
If you are considering them for other jobs than that they previously occupied, then you may consider their general qualifications using the information supplied by the employee or previous contractor.
If the new contract does not provide for the same number of job openings - for example, the previous contract had 100 job openings and your current contract has 80 – you are obligated to offer a job to qualified individuals in the remaining pool of 20 should any of the 80 vacate their position in the first 90 days of the new contract.
For more information, the DOL Wage and Hour Division has several useful resources for contractors here.
Asked by Shannon L. - Sep 27, 2016
We have updated our job description. Please review and give any feedback. Service/Sales Route Technician
Plunkett's Pest Control You probably never thought about working for a pest control company; but it may just be everything you are looking for. Are you a dynamic, energetic and motivated person who can work independently and with a team? Does the idea of managing your own territory and growing business while providing essential services to our commercial and residential customers every month interest you? Do you have a valid driver's license and are ready to work on one of the top service teams in the upper Midwest? Working out of your home, you will be servicing the _______ area. The Route Service/Sales Technician is provided a company truck, competitive compensation and excellent benefits package including vacation, sick time, medical insurance and a 401k retirement plan. Pest control experience is not required; we will train the right person and provide them with all the tools required for a successful career. POSITION DESCRIPTION: The Route Service/Sales Technician will be responsible for an assigned territory to manage each month. You will provide inspections and treatments to a variety of business ranging from restaurants, food plants, warehousing to office buildings and residential homes. You will also be required to build new business through sales. Essential Job Duties: • Drive company vehicle to client sites to provide pest management services in a professional and safe manner • Build route density by finding new prospective clients and looking for ways to add value to existing clients • Participate fully in training opportunities to enhance knowledge; and to meet requirements for licensing and safety standards • Work in a safe manner by adhering to OSHA, state requirements, and Plunketts’ policies and procedures • Maintain proper inventory of tools, equipment, and materials in company vehicle to complete all work and tasks assigned • Project a professional image; is friendly, pleasant, and courteous when dealing with internal and external clients • Perform effectively with minimal direction and without direct supervision • Adapt quickly to change and work under tight deadlines • Organization of own work and completion of work on a timely basis
Job Requirements To perform this job successfully, an individual must be able to perform each essential duty satisfactorily. The requirements below are representative of the knowledge, skill, and/or ability required. Reasonable accommodations may be made to enable individuals with disabilities to perform the essential functions. • High school diploma or equivalent • Ability to read, legibly speak, and understand English; must be able to communicate clearly and effectively to clients or Plunkett’s employees • Requires communication through telephone conversations, face-to-face interactions, and email • Able to use computer-based and mobile applications • Ability to maintain a high level of confidentiality • Lift/push/pull 25lbs-50lbs regularly and up to 100lbs occasionally • Extensive bending, kneeling, stooping, crouching crawling, reaching overhead, climbing a ladder, work in confined spaces, walk for long periods, and sit for long periods. • Tolerate a variety of environmental conditions, indoors and outdoors during seasonal weather, damp locations, and dusty locations • Utilize application equipment, inspection equipment, and small hand tools • The ability to work extended hours and some weekends • Self-starter with strong problem solving skills; detail oriented • Exceptional client service skills; team player • Must have a valid driver’s license and acceptable driving record • Physical capability assessment, favorable drug test, and acceptable background record is also required
About Plunkett’s: Plunkett’s is a 3rd generation family owned business established in 1915 – celebrating over 100 years of continued growth! Our 370+ employees enjoy competitive wages and rewards, fantastic benefits, a company sponsored retirement program, continuous training and career development. Plunkett’s is an outstanding, privately owned company that holds a great deal of opportunity for people who want to step up and start an exciting career!
Come join the Plunkett’s family!
Plunkett’s is an equal opportunity employer and committed to hiring and retaining a workforce that reflects the diverse communities we serve. EOE/Minorities/Females/Protected Vets/Disabilities/LGBT
Job descriptions are a useful tool that describes the tasks, duties, functions, and responsibilities of a position. Job descriptions typically include the following components: • Job title • Summary/ objective • Essential functions • Competency • Supervisory responsibilities or level of supervision • Work environment • Physical demands • Required education and experience • Affirmative action plan/ equal employer opportunity (AAP/EEO) statement
The job description you provided does include each of these components. I do have two suggestions: 1. Be consistent with how the job title is listed. In the heading, the job title is “Service/ Sales Route Technician” but in the position description it is listed as “Route Service/ Sales Technician”. 2. Add a statement that indicates that the job description is not designed to be a comprehensive listing of activities, duties or responsibilities that are required and that other duties may be assigned. For example, you could add “Cooperate with company management by performing any other duties when asked to do so.”
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.