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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.
Notification regarding self-identification of disability
Asked by Anonymous - Oct 04, 2017
Is there a specific format or method that a contractor must use when sending a reminder to employees about their right to self-identify between the five year period? During October, our organization celebrates National Disability Employment Awareness Month through various sponsored activities. We also publish a notice in our employee newsletter as well as on our Intranet reminding employees about their right to confidentially self-identify their disability status at any point during their employment and provide a contact number. The newsletter goes out to all employees. Is this sufficient for meeting our obligations or do we need to do something in addition to this?
The regulations require that “contractors invite applicants to self–identify as IWDs at both the pre–offer and post–offer phases of the application process, using language prescribed by OFCCP. The regulations also require that contractors invite their employees to self–identify as IWDs every five years, using the prescribed language.” Contractors are required to use the OMB form, but there is no prescribed method that contractors should use to invite employees to self-identify every five years. When choosing the method to use, consider the kind of documentation or proof that your method will provide you. Will your records support that each employee received an invitation to self-identify? If you have 100 employees, can you prove that all 100 employees received an invitation? If you had an employee file a disability discrimination claim, and you were not aware the employee had a disability, will you be able to prove that you provided him/her an invitation to self-identify and the employee declined to self-identify?
The concern I have with embedding the self-ID invitation in a newsletter is that, while you can prove that you sent the newsletter to all employees, that does not mean that every employee read the newsletter and therefore became aware of the invitation to self-identify. I would advise a more direct method for the invitation, that leaves no doubt that they received the invitation to self-identify. An email that goes out to all employees, where you can have a record of all employees who received the email, inviting them to self-identify, would provide you better documentation. You may also wish to add this invitation in the notices that HR sends out to employees to sign off on annually. Regardless of your method, make sure your documentation can prove that all of your employees received that invitation.
OMB Self-ID Disability Form Use
Asked by Anonymous - Oct 02, 2017
Hello, I like to know if during the 5 year solicitation to your workforce and also for the 2 1/2 year reminder, is the OMB Self-ID Disability Form used to do so or are you able to create simply a electronic method that asks the same information, but not the physical form itself. In other words, our company had created a simple electronic form that asks the employee to select out of the following options: "Yes, I have a disability (or previously had a disability), "No, I don't have a disability", or "I don't wish to answer". They then must include a digital signature as well as confirm that the information is accurate, by indicating "Yes". The associates were given 2 weeks to complete the survey and believe it might be time stamped. All the information that gets updated in our HRIS without anyone actually physically seeing the information. We don't mention anything about reasonable accommodation on the e-mail communication or on the electronic form itself. That all said, are we fine with keeping the electronic form with possibly adding the reasonable accommodation language in during the 5 years or do we need to use the actual physical OMB form. Additionally, during the 2 1/2 year reminder, could we use our company created electronic form? Please advise. Thank you.
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Oct 02, 2017
This is a good question and a popular one. The OFCCP is particular about format with respect to soliciting this information, regardless of the timing of the solicitation. In its FAQs, the OFCCP provides an answer to your question, which reads as follows:
“Yes, contractors may create an electronically fillable version of the form used to invite self–identification provided that form meets certain requirements. The e–form must:
Display the OMB number and expiration date; Contain the text of the form without alteration; Use a sans–serif font, such as Calibri or Arial; and Use at least 11–pitch for font size (with the exception of the footnote and burden statement, which must be at least 10–pitch in size).
Though it may seem that specifying the minimum size and type of font is unnecessary, OFCCP is doing so to ensure the consistency of appearance, ease of reading, and the general accessibility of the form. By using the OMB number and date, job applicants and employees know that the form is an officially approved government form.”
Working with 3rd party recruiters
Asked by Anonymous - Sep 21, 2017
Based on a webinar I sat through on OFCCP compliance, it is my understanding that if a company is using any third party recruiters we need to communicate this information to the state job boards. Is this correct? If so, is it only if we are regularly using third party recruiters? Some companies cover a majority of their recruiting in house but occasionally use outside recruiters and I was wondering if this applied. Thank you!
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Sep 21, 2017
Yes. All jobs that meet the criteria outlined in Sec. 60-4.3 Equal opportunity clauses (all positions except executive and top management, those positions that will be filled from within the contractor's organization, and positions lasting three days or less) need to be posted with the State Employment Service. That includes any jobs that are filled by referrals from a third party recruiter.
Disposition on canceled requisitions
Asked by Anonymous - Sep 14, 2017
If a requisition has been canceled, do the applicants who have applied need to be dispositioned?
Yes. But the job is easy, as they should all be dispositioned as "Requisition cancelled." This may seem totally obvious, but some companies leave candidates in cancelled requisitions with a disposition of "reviewed" or "applied" or something else that suggests they may have been considered or that a selection that occurred. "Requisition cancelled" makes it clear what happened.
Visa Sponsorship Question
Asked by Anonymous - Sep 13, 2017
Can you let me know if the following question is acceptable on an application??
Do you currently or will you in the future require any type of Visa sponsorship or transfer to work in the country for which you are applying?
It is not clear whether this is a domestic-only application. This answer is only for Visa sponsorship in the US.
As far as I am aware, the U.S. Department of Justice's 2013 technical assistance letter is still good. https://www.justice.gov/sites/default/files/crt/legacy/2013/09/11/171.pdf "OSC prefers the question proposed in the 1998 technical assistance letter: 'Will you now or in the future require sponsorship for employment visa status (e.g., H-1B visa status)?'" The technical assistance letter continues: "If an employer chooses not to employ persons who require sponsorship for an employment visa, such as an H-1 visa, the employer may state in its job postings that it will not sponsor applicants for work visas." It does not address the issue of transfer to work in the US.
It may be worthwhile to skim the other technical assistance letters on this website: https://www.justice.gov/crt/technical-assistance-letters
Multiple Establishments for AAP purposes
Asked by Anonymous - Sep 05, 2017
I'm trying to find guidance on how to determine if we have multiple establishments for our Affirmative Action Program. I've read that any location with 50 or more employees needs its own program, but I've also read that if the locations are in the same labor market or recruiting area that they can be included in the same plan.
Are there any rules that define how a labor market is determined for a location? For example, I assume that if we have multiple physical locations in the same city then it would be appropriate to combine those locations in the same AAP. If we have over 50 employees in both Buffalo, NY and New York, NY could they be considered in the same labor market of New York state, or do we need to go by the metro-areas?
In regard to having separate AAPs, the fundamental rules are found in the Code of Federal Regulations (CFR) at 41 CFR 60-2. Those regulations state as follows:
"(d) Who is included in affirmative action programs. Contractors subject to the affirmative action program requirements must develop and maintain a written affirmative action program for each of their establishments. Each employee in the contractor’s workforce must be included in an affirmative action program. Each employee must be included in the affirmative action program of the establishment at which he or she works, except that: (1) Employees who work at establishments other than that of the manager to whom they report, must be included in the affirmative action program of their manager. (2) Employees who work at an establishment where the contractor employs fewer than 50 employees, may be included under any of the following three options: In an affirmative action program which covers just that establishment; in the affirmative action program which covers the location of the personnel function which supports the establishment; or, in the affirmative action program which covers the location of the official to whom they report. (3) Employees for whom selection decisions are made at a higher level establishment within the organization must be included in the affirmative action program of the establishment where the selection decision is made. (4) If a contractor wishes to establish an affirmative action program other than by establishment, the contractor may reach agreement with OFCCP on the development and use of affirmative action programs based on functional or business units. The Deputy Assistant Secretary, or his or her designee, must approve such agreements. Agreements allowing the use of functional or business unit affirmative action programs cannot be construed to limit or restrict how the OFCCP structures its compliance evaluations."
Thus, the simple answer to your question is that every "establishment" of 50 or more employees must have an affirmative action program. There is no exception made for establishments in the same labor market or recruiting area.
OFCCP will, at times, allow organizations to include two establishments in the same city to be combined into one AAP. However, the agency is not required to do so. The agency would unquestionably say that establishments of over 50 employees in Buffalo NY and New York NY would need to be in separate AAPs.
If you want to combine establishments because they are part of a joined business unit or functional area, you could go through the process of reaching a functional AAP agreement with OFCCP. However, there are pros and cons to this approach which are too lengthy to discuss here.
An important consideration is this: organizations are better off having a smaller number of employees in any given AAP. AAPs with larger numbers are more likely to have statistical disparities just because there is more data involved. Thus, having an AAP for each establishment often benefits an organization from a strategic standpoint, even if it creates more administrative work.
A final note: organizations should actually have three AAPs for each establishment. There should be an AAP under the Executive Order, an AAP for individuals with disabilities, and an AAP for protected veterans. The federal regulations regarding individuals with disabilities and protected veterans do not contain the same exact rules regarding who should be included in each AAP like the Executive Order regulations do, but it makes sense that the persons and data in each AAP should be parallel.
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Sep 05, 2017
This is a very good question. OFCCP does not define "establishment." It often makes sense to break AAPs down by location, but this is not required. It really depends on the company's circumstances. The only "rules" that apply to the plans are the laws enforced by OFCCP (all in the Code of Federal Regulations), so there is not much information on which to base the decision. However, there are some important strategic decisions that help in the event of an audit. This is completely case-specific to each company. The flexibility in the law allows each company to determine how to best map its plans. Satellite or remote employees should be included in the plan of their manager, versus including them in the nearest location. (See number 1, above.)
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