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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  • Salary Requests/Negotiations vs OFCCP
    Asked by Anonymous - Aug 16, 2016
    Can salary requests and negotiations be used to defend against suggested pay discrimination? If a company is paying the candidate's "requested salary," could this be an issue during an OFCCP compensation audit?
    Answered by Roselle Rogers from Local JobNetwork™ - Aug 19, 2016
    Unfortunately, this may not provide adequate defense against a pay discrimination claim. A candidate who is interviewing at a company is not in a position to know how his or her desired compensation compares to those in similarly situated positions within the company. Because it is the employer who is in possession of that information, the onus is on the employer to ensure that it is paying employees in the same establishment equally for work that requires equal skill, effort, and responsibility, and is performed under similar working conditions. Differentials in pay are allowed based on seniority, merit, quantity or quality of production, or a factor other than sex, race, color, religion, national origin, age, or disability. For more information, refer to OFCCP’s Fact Sheet on Equal Pay and Compensation Discrimination.

  • How to stay current on recent pay or hiring discrimination cases
    Asked by Anonymous - Aug 08, 2016
    Can you recommend a website to use to stay current on cases and/or case outcomes related to pay or hiring discrimination?
    Answered by Debra Milstein Gardner from Workplace Dynamics, LLC - Aug 09, 2016
    Both the EEOC and Department of Labor regularly post information about new court cases and settlements. You can subscribe to both to receive all communications.

    EEOC newsroom - https://www.eeoc.gov/eeoc/newsroom/index.cfm
    OFCCP news - https://www.dol.gov/ofccp/OFCCPNews/more_news.htm

  • Reasonable Accomodations
    Asked by Anonymous - Aug 04, 2016
    What is the requirement for reasonable accommodations in our EEO tagline? Is our company required to list our phone number?
    Answered by Amy Wozniak from Local JobNetwork™ - Aug 08, 2016
    Federal contractors are required to state in all solicitations or advertisements for employees their status as an equal opportunity employer and that all qualified applicants will receive consideration without regard to their status as a member of a protected group. The Office of Federal Contract Compliance Programs (OFCCP) provided a sample tagline that you could use in its E.O. 13672 Frequently Asked Questions that states the following: “Equal Opportunity Employer – minorities/females/veterans/individuals with disabilities/sexual orientation/gender identity.” There is no requirement to include language regarding reasonable accommodations or your phone number within the EEO tagline itself.

    However, federal contractors are obligated to include information, somewhere in your job posting, regarding how a person with a disability can request an accommodation to complete the application process if that is needed. Notice of how to obtain reasonable accommodations should be provided by the contractor via its online system, as well as on its paper applications and job announcements. Ideally, such notices should be prominently displayed, and included at the beginning of the online application process. At a minimum, these notices should contain the name of the person to contact, and the process for requesting an accommodation.

  • Non-discriminatory screening of candidates.
    Asked by Anonymous - Aug 02, 2016
    I am hoping that you can help me out and review the below information for legal and non-discriminatory screening of candidates. Our team has proposed the following language below to be included in a posting of approximately 10 positions for a contract that we were awarded last week. I'm not sure it meets nondiscriminatory requirements.

    Also, we have a requirement to provide a credit check and a specific score must be achieved or the candidate will not be hired. We must do this within 5 hours of receiving a go forward from a resume review. This severely limits our ability to have a signed offer in hand with a contingency for passing the requirements listed below.


    Other Requirements:
    While this position does not require a security clearance, applicants must be eligible to work in the United States. In addition, Applicants must also:
    • Pass a background investigation, which may include a credit check including overall credit score
    • Be alcohol and drug free
    • Be literate, well-groomed and courteous
    • Have the ability to lift and handle at least 50 pounds

    Can you shed some light on this at all?

    Thank you for your insight and assistance.

    Answered by Marilynn L. Schuyler from Schuyler Affirmative Action Practice - Aug 02, 2016
    The job requirements must be related to the position being posted. There are few positions in which a credit check would be necessary, so such criteria should be evaluated on a case-by-case basis. Physical requirements should also be reviewed for business necessity for specific positions, as the ability to lift 50 pounds will tend to screen out women.

  • Which BQ equivalency should prominently display in the job post?
    Asked by Carrie H. - Jul 19, 2016
    What is the correct way to display the basic qualifications (BQ) of the job in the listing/posting when there are education/experience equivalencies for the position? (Ex. Bachelor’s and 2 years of experience or High School Diploma and 8 years of experience.)

    The requisition creation platforms (both Peoplefluent and LJN) have a drop-down menu for "Required Education" and a separate drop-down for "Required Experience." These drop-downs do not account for an equivalency and each specifically say "Required." The use of the word “Required” could mean the minimum education and the minimum experience, which technically could each be from a different equivalency (ex. High School and 2 years - rather than High School and 8 years). I know we need to pick a full equivalency and use the whole requirement, but which one?

    Considering these are "equivalencies" I do not think that one set of education/experience is better than the other, however the degree might be the preference of the manager. If we display the Bachelor’s degree, we could inadvertently push qualified High School with experience candidates away because they think they need a degree. If we list High School as the education (because it is the minimum) then we may miss out on qualified college educated applicants who do not want to review and apply to a position that seemingly only requires a high school education.

    I researched 14 other Federal Contractor job postings on the NC Works state job board. Only eight used equivalencies. Seven of those indicated the degree as the “required” education which displayed at the top of the post, with the full equivalency detail being spelled out further down in the post. Only one Contractor listed High School as the required education, when there was a college degree equivalency. The other six Contractors don’t appear to use equivalencies. (Which makes me wonder what they do when someone awesome applies with great experience that doesn't have the degree.)

    From the standpoints of 1) equal opportunity / barrier prevention and 2) OFCCP compliance – what do you advise Contractors to do if they are forced to pick a BQ for display? Thanks in advance!
    Answered by Amy Wozniak from Local JobNetwork™ - Jul 21, 2016
    While federal contractors need to review their job descriptions to make sure their basic qualifications are not discriminatory, from an OFCCP compliance perspective, there is no obligation to choose one basic qualification over another. These are entirely at the discretion of the contractor. However, if your objective is to cast as wide of a net as possible, it would be advisable to select the minimum experience and education that would be acceptable for your position. If you don’t require a college degree, a best practice would be to select “high school” for the education requirement and “2 years” for the experience requirement and include additional detail regarding your equivalency (ex. Requires a bachelor’s degree and 2 years of experience or a high school diploma and 8 years of experience) within the body of the posting. By doing so, you are not prohibiting any potential candidates from applying to your position.

  • Internet Applicants & Emailed Resumes
    Asked by Anonymous - Jul 13, 2016
    Our standard practice is to consider job seekers for a position only if they submit an online application through our website.

    We recently posted openings with an outside job board. The job board allows candidates to store their resumes and utilize a one-click apply which automatically emails the resume to us. We would like to review these resumes and, if a candidate meets the basic qualifications for the job, invite them to apply online through our website. The person would continue through the selection process only after they have applied.

    Do the internet applicant and recordkeeping rules allow for this? Additionally, are we required to retain the resume if the individual does not follow through with an online application?
    Answered by Amy Wozniak from Local JobNetwork™ - Jul 15, 2016
    The record keeping obligation for federal contractors is stated under OFCCP’s Internet Applicant Rule here. In 41 C.F.R. § 60-1.3 OFCCP defines who is an Internet Applicant and in 41 C.F.R. 60-1.12 it sets forth the record retention requirements for federal contractors.

    According to the OFCCP, an “Internet Applicant” is an individual who satisfies all four of the following criteria: the individual submitted an expression of interest in employment through the Internet or related electronic data technologies; the contractor considered the individual for employment in a particular position; the individual's expression of interest indicated that the individual possesses the basic qualifications for the position; and the individual, at no point in the contractor's selection process prior to receiving an offer of employment from the contractor, removed himself or herself from further consideration or otherwise indicated that he/she was no longer interested in the position.

    Contractors are not required to maintain the resumes of individuals if the contractor did not consider them. If the candidate does not meet the basic qualifications for the position, then you would not be required to maintain these records under the Internet Applicant Rule.

    OFCCP also allows contractors to establish a protocol where it would refrain from considering expressions of interest that are not submitted in accordance with standard procedures the contractor establishes. Therefore, requiring applicants to submit an online application in order to be considered is acceptable. It is important that this protocol is documented in your hiring process and that you apply it in a uniform and consistent manner.

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

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.