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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.
If we utilize a staffing agency to assist us in sourcing for candidates, are those candidates also required to apply to the position posted on our site? If not, how do we capture the applicant information?
If the staffing agency is sourcing candidates for positions that are part of your regular workforce, you need to collect applicant information from those candidates, including demographic information for all candidates who are "Internet applicants." ("Internet applicants" are basically those applicants who are viable candidates for the positions in which they express interest.)
If you have a rule that in order to receive additional consideration, a candidate must express interest via your website, then the candidates referred by the staffing agency must be told that they are required to express interest using your website. Should they fail to do so, they should not receive further consideration from your company. If you have already received a resume or other information from the candidate, you should retain the resume and other information, but you should NOT give the candidate further consideration.
You are allowed to establish a rule that says "Candidates referred by a staffing agency are not required to express interest through our website." I cannot recommend that you establish such a rule, as you will find that your lives will be much simpler during an OFCCP compliance review if you have a uniform manner for candidates to express interest. However, there is nothing to prevent you from allowing a certain class of candidates to express interest in an alternate manner. In this situation, you will need to find a way enter the same data you commonly collect from candidates who apply via your website from candidates referred by the staffing agency. The most likely scenario here would be that someone would be required to do data entry into your system from resumes and other documents you receive. Please note that you will absolutely be required to make an effort to collect demographic data from any viable candidates who were referred by the staffing agency. Please also note that you will be required to retain resumes and other information collected from all candidates referred by the staffing agency, even if they are not viable candidates.
If you are using a staffing to source candidates for temporary positions where the candidates are hired by the staffing agency and remain part of the staffing agency's workforce until such a time as they are converted to your regular workforce, the situation is much different. OFCCP has generally approached candidates who are considered for temporary positions on an agency's payroll as candidates (and then employees) of the staffing agency rather than candidates (and then employees) of the federal contractor or subcontractor. Temporaries typically becomes the candidates of the contractor or subcontractor only when they are considered for positions on the contractor or subcontractor's regular workforce. Please note that there are a variety of co-employment issues that exist here, and it is not impossible that OFCCP would suggest that candidates for temporary positions are candidates of both the federal contractor and the staffing agency depending on how the hiring is handled.
The best approach is to make all candidates who will be considered for positions on your payroll apply through the same method (which for you would be through your website) regardless of how they were sourced, and to avoid having candidates who will be considered for temporary positions on an agency's payroll apply directly to your company.
Sourcing for potential positions
Asked by Anonymous - Feb 17, 2017
We have won a contract that will have task orders issued in different regions across the US and we would like to build a pipeline of candidates for the possible positions coming in the future. Many of these positions are in states and/or US territories that we currently don't have work in. There are a total of 300 possible openings. Are we able to post one job per job title and state that we are accepting applications and that the work could be in multiple states (listing out the states) or do we need to do an opening per job per location? We are unable to register with the ESDS in many of the states because we do not have any current work there.
Here's the relevant language from the federal regulations:
41 CFR 60-300.5(a) 2. The contractor agrees to immediately list all employment openings which exist at the time of the execution of this contract and those which occur during the performance of this contract...with the appropriate employment service delivery system where the opening occurs....In order to satisfy the listing requirement described herein, contractors must provide information about the job vacancy in any manner and format permitted by the appropriate employment service delivery system which will allow that system to provide priority referral of veterans protected by VEVRAA for that job vacancy. 3. 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...
Here's your problem: this language is unhelpful to your situation. It doesn't tell us whether you need to list one job per job title, nor does it tell us what to do when the states refuse your job posting. It doesn't tell us whether you can list with one state when work may occur in multiple states. And it doesn't tell us what the rules are when an organization is creating a pipeline for future openings rather than recruiting candidates for current openings.
One important part of the language is that "contractors must provide information about the job vacancy in any manner and format permitted" by the ESDS in order to allow the "priority referral of veterans". The second part of this sentence is absolutely critical. The job listing requirement in the regulations is a mechanism to ensure there is priority referral of veterans. Thus, whatever is done to ensure that priority referral occurs is going to help meet the requirements in the veterans regulations.
The first part of that language about providing information in any manner and format permitted by the ESDS has become a problem for many federal contractors and subcontractors. The issue you have run into with the states requiring a physical presence in the state is a common one. OFCCP seems to have recognized this, and when this situation occurs, OFCCP allows organizations to list positions in the state where they have their headquarters, or in a nearby state where they have significant operations, or in a state where the HR representatives involved in recruiting and selection are based. There is no specific written guidance OFCCP has provided in this regard, and thus any particular compliance officer may have his or her own ideas about this. However, OFCCP generally will give organizations some leeway if an effort is made to meet the veteran preference requirement.
The language about "manner and format" is also a problem in regard to your question about posting one job per state where you will be hiring multiple candidates. OFCCP seems to allow organizations to hire multiple candidates from one applicant pool so long as all hires are for the same job title and that the qualifications for that one job title are applied uniformly. (Thus, OFCCP would not be troubled if you hired 30 assemblers from one pool, so long as the job qualifications were always the same. Conversely, OFCCP would likely ask many questions if you hired 30 assemblers, 15 welders, 10 grinders, and 10 mechanics from the same applicant pool.) Whether a particular state would allow you to indicate you are hiring multiple persons into one job and that these persons may be working in a variety of locations is something that is up to the state. The relevant ESDS will determine the manner and format of job listings, including whether listings must be for single positions or whether they can be for multiple openings in multiple locations.
All of this means there is not a simple answer here. The starting point is this:
-Work closely with the ESDS office where your headquarters is, and/or work closely with the ESDS offices where your HR staff involved in the recruitment process are based. -Avoid job postings for generic openings (i.e. "production" or "general" or "factor" or "construction"). -Ensure that job postings with the ESDS are made at least contemporaneously with any other type of advertising. -Finally, whatever you do, make a commitment to ensuring that the veteran preference through the ESDS is somehow carried out.
reference checking before an offer
Asked by Julie M. - Feb 17, 2017
I understand background and drug tests should not take place prior to the offer. What about reference checks?
You are allowed to do reference checks at whatever point in the selection process it makes sense to do reference checks. There is no OFCCP-related rule that dictates when reference checks must occur. OFCCP may be concerned if it finds that you are doing reference checks at a different stage in the selection process for members of a certain classification (i.e. you do reference checks for African Americans earlier than reference checks for whites), but so long as you do the reference check in a logical and uniform uniform way, OFCCP would suggest you have wide latitude on when and how to do the reference check.
Question about E-Verify for Federal Contractors
Asked by Anonymous - Feb 14, 2017
I am in the process of establishing a more comprehensive E-Verify program for our company. We are Federal Contractors. I cannot find on IDES, or the Illinois Dept. of Labor if we still need to do the "E-Verify Employer Attestation Form"? Does anyone know?
Executive Order 13465, which amended Executive Order 12989, required contractors with covered federal contracts to use an electronic employment verification system (E-Verify) to verify the employment eligibility of employees performing work on a federal contract. To see if you have a covered federal contract and for guidance on using E-Verify, please refer to the U.S. Citizen and Immigration Services’ E-Verify section for federal contractors.
Under the Right to Privacy in the Workplace Act (820 ILCS 55), the Illinois Department of Labor also requires employers conducting business in Illinois to complete an attestation using this form prescribed by the department. You can find additional information and guidance on this Act here.
Posting positions to fill with a current contractor
Asked by Jana M. - Feb 09, 2017
Would you be able to direct me to where I can find out whether a federal contractor is required to post a position for which we will convert a contractor to an FTE? We have several contractors here at QTS and often we convert them into a full-time position without posting the role b/c it is their exact same position, just moving them from contractor status to an FTE. Thank you!
This is a good question, and one that not many federal contractors take the time to consider. In this situation, OFCCP would be interested to know at what point the opportunity for diverse outreach was provided. If the process for selecting the contractor was competitive and followed the regulatory requirements for posting, then the conversion, without competition is less problematic. The safest route, however, is to go ahead and post the position as you would any other opening.
Voluntary Self Identification Form - Guidelines for Federally Assisted Contractors
Asked by Human R. - Feb 09, 2017
As part of our application process thru The Local Job Network, we have applicants respond to the Voluntary Self-Identification Form - is this a requirement for a Construction Contractor who only works on federally assisted contracts, and would we also be required to follow the guidelines in which we present after hire and every 5 years?
If we work on Davis Beacon projects - does that make any difference in our obligations?
The requirements for construction contractors and federally-assisted construction contractors are different. Construction contractors covered under VEVRAA and Section 503 are required to ask applicants and new hires to self-identify if they are a protected veteran or an individual with a disability. This obligation does not apply to federally-assisted construction contractors. Pam Ploor has written an excellent two-part article that was published in The OFCCP Digest that lays out the compliance obligations of construction contractors and the difference between a construction contract and a federally-assisted construction contract. I would encourage you to read her article.
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.