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OFCCP: Ask the Experts
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.
I'm trying to figure out the best way to be compliant with OFCCP for a job that we started recruiting for ourselves but ended up outsourcing to a 3rd party recruiter (head hunter). We only reviewed about half the candidates that applied to our position before outsourcing to the 3rd party recruiter. We didn't close the position however, which was possibly where we went wrong. For those 10+ candidates that applied after we decided to use the 3rd party recruiter how do we show that they weren't actually considered for the position at all. As of right now I've marked them as "late applicants" because that is the best disposition I could find that seemed to fit. These candidates shouldn't be considered in our Affirmative Action reporting then because they weren't actually reviewed/considered by our recruiter, correct?
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - May 25, 2018
One anomaly in a hiring practice isn't uncommon. For this situation, the best practice would be to include those applicants that you did review in the pool for analysis along with those from the 3rd...
You are correct, Meagan. You are not required to report to the OFCCP (i.e. include in any analysis of YOUR selection decisions) individuals about whom you made no employment decision -- in this case, no review/assessment of their qualifications. I think it is better that you didn't close/re-open the req because one could argue that these individuals could have "competed" with those the 3rd party recruiter outsourced -- who presumably applied later. (Are you certain that the 3rd party recruiter did not review those 10+ job seekers?)
Based on the information you provided, however, I'll assume no one reviewed those 10+ job seekers. And, I assume, that whatever the reason for not "considering" those applications was, it was NOT because they...
We are contracted with LocaljobNetwork.com and our jobs are posted with all diverse organizations locally for us. In addition we are having our recruiters add at least one organization for Women, Veterans, Minorities and People with Disabilities to each job they post, is this necessary since it is already being done by our vendor? When they add it sends an email to the representative for that organization alerting them that we have a position open.
Is this a requirement in order for us to be compliant as a contractor? It is very time consuming and will continue if it is a requirement, but if it is a duplication of efforts would like to know.
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - May 25, 2018
It depends on whether your company is meeting its utilization goals. If it is, then current methods are working and while the company must remain diligent in its affirmative action efforts, but need not necessarily develop additional sources. However, if not meeting the goal, then current methods need to be evaluated and additional sources found. (In other words,...
One of our managers opened a closed posting that previously had 39 applicants, changed the job title and job information and reopened it. Two candidates applied and the posting was again closed within a day. Do I need to have the posting changed back to what it was originally (job title and information) and post a new job having the candidates reapply for the new one?
There is specific language found in the revised veteran and disability regulations. However, OFCCP has also issued several FAQs in this regard. The response to FAQ 38 for the revised veterans regulations (which has a parallel response in the disability FAQs) reads as follows:
"Are federal contractors permitted to combine all of the Equal Opportunity (EO) clauses required by 41 CFR 60–300.5(a), 41 CFR 60–741.5(a), and 41 CFR 60–1.4(a) (or for construction contractors, 41 CFR 60–4.3(a)) into a single, consolidated “incorporation by reference” clause?
Yes, contractors may combine all of their required EO clauses into a single “incorporation by reference” clause, provided...
I am involved with a company that had an OFCCP complaint filed against them by a former HR employee. The employee had been fired for using her access to other employees' salaries to seek a raise for herself. She accessed this information without requesting any permission from either the individual employees whose information she accessed and without the approval of her superiors. The company has been informed that they were within their rights to fire the employee due to the exception for discharging HR employees (or payroll EEs) who have access other employees' salaries and use that access without permission or approval.
However, now the former employee has filed a retaliation complaint with the OFCCP, alleging that the company's stated reason for firing her was just a cover and she was actually fired for discussing her pay. Her complaint has no reference to pay discrimination based on race, sex, or veteran status. Is this a valid cause of action that the OFCCP would address or provide relief for?
It is unusual for OFCCP to receive or investigate individual complaints. Most OFCCP actions are an outgrowth of an affirmative action compliance review rather than an individual complaint.
With that said, OFCCP does have the right to investigate complaints regarding violations of its regulations, and applicants and employees do have certain protections regarding the discussion of pay under the agency's revisions to the Executive Order 11246 regulations. These revisions are an outgrowth of Executive Order 13665, which is titled "Non-Retaliation for Disclosure of Compensation Information". (The regulations themselves, interestingly, are titled "Government Contractors, Prohibitions Against Pay Secrecy Policies and Actions." They...
Is there an available state workforce agency listed that participates in providing participants in the Los Angeles County's Department of Public Social Services (DPSS) Greater Avenues for Independence (GAIN) or General Relief Opportunity for Work (WORK) Program? We are being asked to be willing to consider GAIN/GROW participants for future employment openings, if they meet the minimum qualifications for that opening. I did not see these programs listed in the Local Job Network. If it's possible to add, I would like to have Linkage Agents set up to ensure that our positions are sent and reported.
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.