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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  • Collecting Transcripts
    Asked by Anonymous - Nov 14, 2018
    I work for a DOD contractor in which we primarily hire software engineers. Every summer, we hire a new cohort of new graduates to join our company. Before we make individual offers to these recent graduates, we collect their academic transcripts for review. Currently, only HR (and occasionally the hiring manager) have access to the transcripts. We are generally looking for GPA's above 3.0 and that the students did well in their engineering classes. However, our interviewers are requesting to see the transcripts in advance of the interview, and in addition to the resume. In other words, when sending our interviewers a calendar item for the interview, the interviewers would receive the candidate's resume and transcript. For candidate privacy, do you see any issue with the interviewers (a broader scope than HR) having access to the transcripts? My concern is that information on the transcript will create a bias in the interviews. I am also concerned that if a candidate is not able to send his/her transcript, we are not conducting all interviews equally. If it is permissible to allow interviewers to access the transcripts, should HR inform the candidate that their transcripts may be sent to the interview team? Thank you. 
    Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Dec 03, 2018
    Since this is a question about privacy versus OFCCP compliance, it is a bit out of my area of expertise, but I want to give you some information at least, from a compliance perspective.

    Any time a company is reviewing job qualifications, it is important to understand why the criteria are what they are. In other words, why is a 3.1 acceptable for a new hire, but not a 2.9? What is the definition of "did well" in engineering classes? Seeing the transcripts could create a bias, but that doesn't mean that hiring managers cannot access them. You would definitely want to keep an eye out for trends that may be of concern, such as favoring one institution over another and that has adverse impact against a particular group. If transcripts are not required for each applicant to continue in the hiring process, why are they necessary for any one candidate?

    In short, I would recommend you review your hiring process and make sure that each step is required and useful in finding qualified applicants. You may also want to talk with your hiring mangers and ask them to articulate why they are requesting transcripts. If there is a genuine need, then it is probably a good idea to let the candidate know the transcripts may be used by the interview team. Hope this helps.

  • Compensation Equality
    Asked by Christina S. - Nov 08, 2018
    Our company has a large IDIQ contract where tasks are frequently being awarded. Often times, we are able to negotiate rates on these new task awards based off of current market value. We are currently able to keep the salaries generally similar with a few justifiable exceptions. However, the current job market for certain labor categories is VERY competitive. Companies are paying higher than market value to attract employees. This, of course, creates an issue for us when it comes to retention and negotiation of salaries for new employees. We believe we will be able to obtain an equitable adjustment from the government on our rates but need to be able to attract new talent until that adjustment is granted.

    So, my questions are these:
    1. How can we justify a higher salary for employees on the new task who have the same labor category, description, education, and experience requirements as those on older tasks until the equitable adjustment comes through?
    2. If we are audited during the time we are waiting for the adjustment, will we be found to be non-compliant?

    Also, we have been reading the new OFCCP guidelines. How does a company create a PAG if there are less than 20 employees in any one group?
    Answered by David Cohen from DCI Consulting - Nov 15, 2018
    As long as the higher salaries are based on a business necessity and are done in a non-discriminatory manner and/or have an impact on protected groups this would not be a problem under EO11246. Remember that OFCCP is not the "pay police" but tasked to evaluate compensation to ensure that it is administered in a non-discriminatory manner.

    As for the compensation directive, if you have a very small workforce it may not be possible to put together groups of employees that are similarly situated and have enough in a group to conduct a meaningful regression analysis. There are other statistical tests like Rank Sum, Fishers Exact, etc. that can be used for small groups.

  • Record Retention of Demographic Info.
    Asked by Anonymous - Nov 08, 2018
    We recently changed HRIS systems to Paycom. Our new onboarding process enables new hires to complete required forms as it relates to OFCCP and EEO compliance. They can electronically complete Vets and Disability required forms and it is then housed in the document section of their electronic file. My question is, for auditing purposes do we need to print out a hard copy of the Vets and Disability form for each person and keep it in a separate file as in the past, or can we simply print it from that person's document section if it is requested.

    Thanks for your help.
    Answered by Alissa Horvitz from Roffman Horvitz, PLC - Nov 15, 2018
    OFCCP issued a Frequently Asked Question on this topic. In the FAQs for Section 503 (Rehabilitation), under the topic of Self-Identification, #5, OFCCP gives employers the option to store the electronic record and print it out if requested. There is no requirement to print out a hard copy of each form and store it in hard copy in separate files as was done in the past:

    FAQ5. What information must a contractor store in order to demonstrate its compliance with the requirement to invite voluntary self–identification of disability from applicants and employees?

    OFCCP's ANSWER: Recognizing that contractors may have different practices and information technology capabilities, OFCCP is providing a range of options for documenting compliance with the voluntary invitation to self–disclose disability requirement.

    Electronic Invitations. A contractor that electronically invites voluntary self–identification of disability must either:
    o Retain electronic copies (e.g., pdf, scanned, etc.) of the electronically completed self–identification forms, as well as any log, spreadsheet or database it may have developed to record the data from the self–identification forms;
    o Retain hard copies of the electronically completed self–identification forms, as well as any log, spreadsheet or database it may have developed to record the data from the self–identification forms; or
    o Retain a detailed log, spreadsheet or database of the data collected from each electronically completed form, without copies of each individually completed form, if the electronic system does not store completed forms. However, the contractor must also be able to demonstrate how they delivered and/or displayed the voluntary invitation to self–identify. This allows compliance officers to verify that contractors met their obligation to use the OMB–approved form.

  • Job posting requirement
    Asked by Amy Y. - Oct 31, 2018
    Are all jobs required to be posted internally and external via the ESDS or could the job be posted internally first and if not filled......go external?
    Answered by Marilynn L. Schuyler from Schuyler Affirmative Action Practice - Oct 31, 2018
    It is perfectly acceptable to post internally first, and if not filled, to then go externally.

  • AA plan requirement
    Asked by Anonymous - Oct 22, 2018
    Our organization has several companies under it, that all have their own branding, finances, and company FEINs (over 20) . Employees, however, are grouped and paid under single FEINs based on the type of business (one of 7 at the moment).

    We have one newer company that had federal contracts and over 50 employees. Would we need to have an AA Plan for the whole organization, or just that company?
    Answered by Alissa Horvitz from Roffman Horvitz, PLC - Oct 22, 2018
    The OFCCP uses a questionnaire to determine when a subsidiary company's government contracts implicate the parent or a subsidiary company's government contracts implicate other sister subsidiaries.


    This typically requires the employer to gather the facts in response to the questions and then seek a legal opinion about whether the facts support a single entity conclusion.

    If there is any way for you to take this question out of the public forum and ask it privately, I would encourage you to do so.
    Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Oct 22, 2018
    The OFCCP will typically do what they call a "single entity" analysis to determine whether the rest of the company or other unit of the company should be included or have their own AAP. The essential question is whether the company that has the contracts operates separately? Sometimes the single entity question is difficult to determine and therefore, it becomes a question of risk. If unable to determine whether a unit of the company is a single entity then the question becomes whether the company wants to have the AAP for those units just in case the OFCCP disagrees on jurisdiction. Just because a company drafts an annual AAP, it does not mean that the company consents to OFCCP jurisdiction.

    The single entity test requires OFCCP to consider whether:

    the entities have common ownership;
    the entities have common directors and/or officers;
    one entity has de facto day–to–day control over the other through policies, management or supervision of the entity’s operations; the personnel policies of the entities emanate from a common or centralized source; and
    the operations of the entities are dependent on each other, e.g., services are provided principally for the benefit of one entity by another and/or both entities share management, offices, or other services.

    See https://www.dol.gov/ofccp/regs/compliance/faqs/ForEmployers/ForEmployersQ34.htm for more information.

  • Demographic Data Collection - Withdrawn Applications
    Asked by Anonymous - Oct 11, 2018
    Good morning,

    My question is in regard to collection of demographic data for OFCCP auditing purposes. Currently, our applicant tracking system allows applicants to "withdraw" their application at any point. This is true even if the applicant has been fully dispositioned and their application is no longer active. For example, if their application status is "Interviewed - Not Hired", they may withdraw.

    That being said, my question is as follows:

    "In instances where applicants have been fully dipsoisitioned (a reason was designated for non-selection) and the applicant subsequently withdraws, would their demographic information still need to be part of the OFCCP report?"

    My thought is "yes" given that not including their demographic information would improperly skew the analysis. For example, let's say five applicants were interviewed. One person receives the offer and four receive the "Interviewed - Not Hired" disposition (which of course has it's own sub-reason codes). If all four of the non-selected applicants withdraw and we omit their information, the analysis may incorrectly show that only one person was ever interviewed.

    What are your thoughts?

    Thank you, in advance, for the information.

    Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Oct 22, 2018
    Assuming your company is using the internet applicant rule, the company must collect the data if the applicant receives an offer. (See rule below.) On those that did not receive an offer, unless the applicant withdrew during the selection process, the demographic data should be kept. Therefore, your instincts are correct.

    By the way, make sure to differentiate between status codes and disposition codes. Status codes identify where the applicant is in the process (e.g., "Interviewed") and dispositions identify why the individual was not hired, or that he or she was hired (e.g., "Not hired, late for interview" or "Offer declined") (It's possible your company has the disposition in the "sub-code," but it's worth mentioning here.)

    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.

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