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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.
As a federal contractor, we are required to collect data from applicants and employees in regard to their race/ethnicity, gender, disability and veteran status. While applicants and employees have the right not to disclose their demographic information, we as an employer, are required to collect and report. This has caused some problems for us an employer when it comes to submissions of reports with missing data. What advice do you give in regards to increase applicant/employee response participation? We have tried educational campaigns but that hasn't made resulted in a huge percentage increase and we do not feel comfortable doing a visual identification (still can't wrap my head around that). Also at what point do inquiries/requests to update their information cross the line when it comes to the General Data Protection Regulation (GDPR)? Thanks in advance for any advice you can provide.
Answered by David Cohen from DCI Consulting - Aug 21, 2018
60-1.12 - Any personnel or employment record made or kept by the contractor shall be preserved by the contractor for a period of not less than two years from the date of the making of the record or the personnel action involved, whichever occurs later. However, if the contractor has fewer than 150 employees or does not have a Government contract of at least $150,000, the minimum record retention period shall be one year from the date of the making of the record or the personnel action involved, whichever occurs later
David's answer is spot on. But I infer from your question that you see people in these circumstances (i.e., failing drug tests and background checks) as somehow different than other applicants whose records you presumably are retaining with no question. So, I'd like to chime in a little on WHY you need/want records for these applicants and why the OFCCP demands their retention.
If these job seekers otherwise meet the definition of an "Internet Applicant", only the persons who are "no shows" for the drug screen might be argued to have withdrawn and therefore not be an "applicant". HOWEVER, drug tests are NOT "tests" within the meaning of the Uniform Guidelines on Employee Selection Procedures or the mandatory selection analysis (also known as "adverse impact analysis"). Consequently, if you've made a "conditional offer" and the drug screen is the final stage they may be considered "Selected" for purposes of the analyses of impact by race/national origin/gender whether they failed to take or took and failed the drug screen. I recommend that you include them in your analyses of "applicants".
[Yes, I know they weren't "hired", but that's NOT ON YOU, it's on them and what contractors are required to analyze is the impact of THEIR decisions – not those of job seekers! The OFCCP asks the wrong question, they should ask -- and you should provide and analyze data on –ALL those who passed all your tests/who YOU selected -- i.e. MADE AN OFFER TO, RATHER THAN on who was hired/promoted. Whether an individual is hired or promoted is simply a payroll consequence of him or her accepting your offer and the applicant's status as an internal or external applicant. Make sure your disposition codes are discrete enough to be able to extract data for analysis on each of the "components" of the selection process, all the elements that make up the "go/"no go" decision making. It’s easy to "roll them up" at the end depending on how your legal counsel recommends you do your analyses. It is MUCH more difficult, costly and time consuming to disaggregate these separate elements after the fact. For longer discussions of the importance of disposition codes, see various issues of the OFCCP Digest, including my articles in the May and June 2018 issues.]
The background check IS clearly a "test", perhaps even multiple tests. People who fail the background check are rejected/not selected on that basis. The OFCCP -- and the contractor -- want to know whether the background check (criminal, credit, references, whichever is the basis for your final selection decision) disproportionately screened out women or members of any of the minority groups. Background checks are generally thought to have disproportionate impact on members of some minority groups which, if it exists, will be seen only if the numbers are big enough.
Because of the cost of background checks they are typically done at the end or toward the end of the selection process. If so, by definition, the people that fail one or more of these typically late stage "tests" are people who have PASSED the other tests in the process. Whether persons who failed a late stage background check are minorities or women or white men, ALL of them BELONG IN THE ANALYSIS OF EARLIER STAGE "TESTS".
Why? Because it may be that the "component" of the "bottom line analysis" (i.e., Applicants v. Selections which is ALWAYS where the OFCCP makes its first "finding" of unlawful discrimination) that is creating the statistical disparity commonly known as "adverse impact" is, for example, a lifting requirement or a score on a standardized test. Job Seekers/Internet Applicants who were not selected because they didn't show/didn't pass a drug screen or a background check possibly/PROBABLY passed the lifting test and/or the standardized "paper/pencil" type test. If they aren't in the analysis of those components, the analysis is flawed. The degree to which there is -- OR IS NOT -- "adverse impact" is without question influenced by whether EVERYONE who took/passed/failed each of these "tests" IS INCLUDED IN THE ANALYSIS OF IMPACT FOR EACH SUCH TEST.
Be aware that all these numbers COUNT; they MATTER. So, you must “Count the Right Numbers”! It is easy to forget that if there is an unrebutted finding of adverse impact NOT ONLY does the contractor have to PAY BACK PAY, IT ALSO MUST ELIMINATE THE “TEST” THAT IS CAUSING THE ADVERSE IMPACT. Stands to reason, doesn’t it? The contractor has to stop discriminating, even if it was unintentional. But change can be costly and disruptive so it’s important that the contractor know what particular selection device or devices it has to abandon. Particularly in the case of professionally developed standardized tests, eliminating or changing them may be more expensive than the back pay assessed! Simply paying money because there’s a statistical disparity in the “bottom line” will NOT prevent the same thing from occurring again – and again. Cause must be determined so that the contractor can either rebut the presumption of discrimination by showing the business necessity for the “test” causing adverse impact OR, eliminate/ change that “test” going forward so as to eliminate the disproportionate exclusion that is unlawful because it either cannot be defended (for lack of data/records) or because it is truly indefensible.
You need these data; therefore, you need to retain these records. The OFCCP needs these data, therefore you are required to retain these records.
Jobs with multiple locations
Asked by Natalia F. - Aug 10, 2018
We are expecting a contract that will have task orders issued in different regions across the US (Virginia, Ohio, Texas, Colorado, Maryland, Washington DC and Illinois) and we would like to build a pipeline of candidates for the possible positions coming in the future, all position listed as contingent. We have presence in all these states. There are a total of 40 possible openings the majority of them with Secret Clearance as requirement. 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? Thanks for your help.
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Aug 17, 2018
There is no requirement to have jobs listed by location. A company can certainly be within OFCCP regulations if it posts a job which states that the work could be located in multiple states (and any other requirements, such as clearance level, for the job). The only tricky part might be if your company has more than one AAP. You would just want to make sure that the applicants and hires align with the appropriate AAP (as well as the EEO-1 and VETS 4212). It is also within regulations if the job ends up going away and there is no hire, but "pipelines" can be difficult to do well, so I recommend that you ensure that practice does not impact your pool or analysis of that pool.
2 Week Posting Requirement
Asked by Anonymous - Aug 09, 2018
I've found it before but having trouble on the OFCCP site finding the REG that shows the requirement to post jobs for a minimum of two weeks. Can some send me the link to that verbiage?
Answered by David Cohen from DCI Consulting - Aug 09, 2018
Here is a link to the regulation that requires the job listing but there is no requirement to list the job for two weeks. 60-300.5 Equal Opportunity Clause - https://www.ecfr.gov/cgi-bin/text-idx?SID=afb08cd93b5e878cec05dec64d64486c&mc=true&node=pt41.1.60_6300&rgn=div5#se41.1.60_6300_184
Using Disposition Code "Not Selected: Experience Overly Extensive"
Asked by Donna R. - Aug 02, 2018
In other words, the candidate is "over" qualified. This would be the perfect code for our needs, but is it advisable to use? I saw this as an example from another company, but thought it sounded discriminatory? Please advise. Thank you.
The use of disposition codes help you document the reason why an applicant fell out of consideration for the position. They should help you justify your selection decision if you have to defend it. Employers need to be careful about using disposition codes that may disproportionately exclude certain individuals. You are much better off using strategic disposition codes that better identify why a candidate is not qualified, or why a candidate is less qualified than the individual you selected, such as “experience not directly related,” “experience not most recent,” or “not as qualified due to type of experience or type of employer.” Ellen Shong-Bergman has written an extensive two-part article on disposition codes in the May and June editions of The OFCCP Digest, where she offered many helpful and strategic disposition codes that employers can use in a variety of situations. Similar questions on disposition codes have been answered in this forum before and I would encourage you to read those answers as well. You can find them by using the search field at the top of this forum and enter “disposition codes”.
Resume Database Search / Internet Applicant Rule
Asked by Anonymous - Jul 31, 2018
As federal contractors, are we required to disposition the candidates we review in a resume database?
OFCCP’s Internet Applicant Recordkeeping Rule requires federal contractors to save certain records when they conduct resume database searches, whether it is an internal or external database.
When searching within your applicant tracking system or internal resume database, the records you need to keep are as follows:
• A record of each resume added to the database • A record of the date each resume was added to the database • A record of the position for which each search of the database was made • The date of the search for each search conducted • The substantive search criteria for each search conducted – such as experience, degree, location, industry, and any key words used
When searching an external resume database, the records you need to keep are:
• A record of the position for which each search of the database was made • The date of the search for each search conducted • The substantive search criteria for each search conducted – such as experience, degree, location, industry, and key words used • The resumes of job seekers who met the basic qualifications for the particular position who you considered for the position. You are not required to maintain the resumes of individuals if you did not consider them for the position. You are also not required to maintain a record of searches that do not produce candidates that meet the basic qualifications.
It would also be beneficial for you to document any data management techniques you used. For example, your company may have a policy of only reviewing the first 50 resumes.
When you are selecting from within the applicants who have applied to the position, you are required to keep a record of any tests, test results, and interview notes. While there is no OFCCP requirement for contractors to use disposition codes, it is in the contractor’s best interest to use strategic disposition codes that record all of the following:
• The stage in the selection process when the candidate was removed from consideration for the position • The reason for removing the candidate from consideration • The person who made the decision to remove the candidate from consideration
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.