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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.
The instructions for completion of the EEO-1 Report compel employers to report on ALL employees by race/ethnicity and gender. Since the government cannot compel your employees to disclose this information, the employer who doesn’t have it is required to make a “visual identification” of race/ethnicity and gender, a very uncomfortable task for most employers. In my experience most employees will voluntarily disclose this information.
The problem with the responses the employer receives during PRE-employment is three-fold: 1) Many people simply won’t tell you. Despite an employer’s covenant NOT TO USE this information in making any employment decision – AND YOU MAY NOT! – many job seekers simply don’t believe it. And at least with respect to questions about “disability”, if not all such information, job seekers/applicants may consider this to be highly personal information and disclosing it – particularly early in the process – not worth the risk that the employer will misuse the information.
2) The timing of the pre-employment survey also matters. If the employer solicits this information at the very beginning of its selection process it may get some responses from job seekers who, it turns out, don’t meet the advertised “Basic Qualifications” – information, frankly, most contractors would rather not have because IF they have it they have to provide it to the agency if the OFCCP were to ask, even for people who don’t meet the definition of “Internet Applicant”. If the employer doesn’t solicit the information until it must – i.e., from all “Internet Applicants” only, the employer is then faced with going back to people it has already eliminated from consideration to ask them to disclose. It’s expected that response rates from that group would be even lower and, possibly, less accurate if provided.
3) Responses from individuals prior to employment are more likely to be incomplete (e.g., disclosing gender but not race/ethnicity or vice versa) or untruthful. If the employer’s system doesn’t “lock” this element of the job seeker’s profile, individuals may even change their responses from one requisition to another – or one reporting period to another! [ESB NOTE: Because contractors rely on these data in preparing reports and analysis for the OFCCP most would really be unhappy to learn that the David Willoughby-MacDonald they reported as White in one analysis shows up as Hispanic in another! I strongly recommend that no job seeker/"Internet Applicant" be permitted to change this information once it is submitted the first time.]
Consequently, you may – OR MAY NOT – have the race/ethnicity, gender, veteran and disability information on all new hires that you think you have. And you need it! Further, while not specifically required to “survey again” for race/ethnicity and gender, you really SHOULD do so…and you might as well do it at the same time as you do the REQUIRED invitation/survey for veteran status and disability -- at the POST-OFFER stage. Since 2014 when the OFCCP introduced the concept of “goals/utilization” and of measurement of outreach efforts to the Section 503 and VEVRAA regulations, contractors are similarly regulated with respect to both pre-employment “invitations” to disclose such information and with respect to POST-OFFER solicitations of this information. I encourage you to look for helpful information from the OFCCP in its FAQs on these issues.
See Questions 7-9 in the OFCCP’s FAQs for Section 503: https://www.dol.gov/ofccp/regs/compliance/faqs/503_faq.htm#Q10 and See Questions 6-7 in the OFCCP’s FAQs for VEVVRA: https://www.dol.gov/ofccp/regs/compliance/faqs/VEVRAA_faq.htm#Q7
Interview Evaluation Questions
Asked by Anonymous - Mar 21, 2019
Do you have any advice to provide when selecting interview evaluation questions? These questions will act as the interview feedback and ultimately show how we made our hiring decision for each applicant. The hiring manager and recruiter will be required to answer these questions and we are leading toward a yes/no format.
I found a somewhat related question on this, but want to ensure I understand. If a job is cancelled, and there are applicants who have already been interviewed/dispositioned (considered for the job) should we change their disposition to job cancelled even if they were considered at one point? Or, should we include all who have been considered in our analysis and only change the disposition to "job cancelled" for the applicants who applied after the date the job was cancelled (since they were never considered)?
When we conduct adverse impact analyses, we are comparing the number of people hired to the number of people who applied for the position. If a position is cancelled, there is no hire. If there is no hire, there are no applicants. Thus, the disposition should be changed to "job cancelled" for all people who applied to that position, whether they were considered for it or not.
In your analysis and in any data reported to the OFCCP you must include ONLY "selections". Where a requisition is cancelled PRIOR TO MAKING ANY OFFER no "selection" has been made EVEN IF SOME HAVE BEEN “CONSIDERED”.
The three essential elements of unlawful discrimination are 1) DENIAL, 2) of an OPPORTUNITY, 3) ON THE BASIS OF gender, race/ethnicity. It's easy to lose sight of, but all we are ever measuring is what the employer did, who it did it to and why. That is true whether one is performing a statistical analysis for disparate/adverse “impact” or for the purpose of investigating the possibility of disparate treatment. The situation you have posited has no "opportunity". There was a potential opportunity but, ultimately, there was none. Consequently, NO ONE – “considered” or “not considered” – for that requisition should be included in your analysis.
You should not destroy these records, but you should have a disposition code that allows you to NOT REPORT/NOT COUNT in any analysis anyone who expressed interest in a requisition that was never filled. By the way, this is also the way you handle job seekers who expressed interest after a job was filled. No opportunity? No count and no analysis. In a perfect world an employer would have sufficient numbers of disposition codes WITH SUFFICIENT CONTENT in the codes to be able to distinguish between those applicants who were “considered” before the job was cancelled and those who were never even considered (The reason that would be “perfect” is that knowing everyone – hired or not – who took, for example, a lifting test) would make the analysis more accurate. But if your world is “imperfect”, the important thing is that you don’t “count/analyze" ANYONE if the job is cancelled. You must keep the records that have been made up to the point of cancellation but it would be a significant mistake to include ANY job seekers in an analysis of SELECTIONS when, in fact, nobody was selected.
The OFCCP confuses everyone about "Adverse Impact" does NOT mean "something bad happened”! It means that the employer's "neutral selection device" -- its "test" disproportionately excluded some group or another as compared to the most successful group. A "test" is something that measures -- or purports to measure -- the person's qualifications, his or her knowledge, skill and ability, if you will, to do THE job. I like to use the term "selection device" because most people think of a "test" as something written (such as a standardized intelligence or aptitude test) -- or performed, like a keystroke "test". But a “test” is also: "a degree in Chemical Engineering", "7 years of progressively more responsible supervisory experience", "a CDL" – or a “GED!” or, "must be admitted to the NC Bar". Or, more subjectively, a test might be an evaluation by the Hiring Manager that the person "has some skills that would add value to the team" or "applicant's skills only replicate skills already in the work group; I need some fresh ideas". Think of a "test" or "selection device" as something that was the BASIS OF the "go/no go" decision.
I find it helpful to think of a client’s selection process as a funnel. Potentially large numbers of job seekers come into the mouth of the funnel. Some of them are eliminated from the process fairly early because they didn’t follow one of your rules, for example. The application was submitted after the deadline or a resume was sent by snail mail when you require an on-line application be completed. So those people fall out of the analysis because your protocol means you never “considered” them. The meaning of “consider” is terribly important! [Quoting from an OFCCP FAQ: “The definition of "considers the individual for employment in a particular position" for purposes of paragraph 60-1.3 (1)(ii) of this definition means that the contractor assesses the substantive information provided in the expression of interest with respect to any qualifications involved with a particular position.” ESB Note: observe that the rule says “qualifications” and “PARTICULAR POSITION”.]
The next job seekers to be eliminated from the process may be those who withdraw implicitly – that is, the employer is not able to contact them, either because the contact information provided doesn’t work or the job seeker doesn’t respond or, even such circumstances as the expression of interest is unreadable. Some others may fall not make it to the “assessment” of “qualifications” because, for example, they indicate on the application form that they are can’t work overtime or they only want day shift or they aren’t available to start work until they graduate in four months. If the terms and conditions of the OPPORTUNITY are mandatory OT, night shift until you can bid out to day shift or the employer is seeking to fill a vacancy NOW” such individuals are not seeking the job you have, the OPPORTUNITY; they want some other one. You haven’t “assess[ed] substantive information…with respect to…qualifications…”. You might find that these job seekers have primo qualifications but why would you even read past the first three lines if they don’t want THIS job. (ESB NOTE: Do you even ASK in your application questions about OT, shift and ready to start date? You should!) Treat these as withdrawals. And then, STRICTLY AN OFCCP RECORD-KEEPING RULE, the agency says you need count/analyze only “Internet Applicants” which are, among other things, only those that meet “Basic Qualifications”.
I think of this group of people, “Internet Applicants” as being those that are now just about to enter the “neck” of my funnel. The selection process is typically somewhat different from job to job. For example, typically there will be more assessments for higher level jobs than for entry level. So, the “neck” of my funnel is longer for Directors than for Laborers. But all the “tests” happen in the “neck” of my funnel…the assessments HR does, first of the application and then – of those that don’t fall out of the process at that point, perhaps a phone interview. Then the assessments the hiring manager does, whether of paper or interview(s). Maybe followed by a standardized test or a “panel interview”. With people passing some “tests” and failing others as they pass through the neck of my funnel. Some get offers, though they decline. AN OFFER IS A SELECTION! It may not be a “hire” or “promotion” but the result of the employer’s selection process sure to goodness isn’t a DENIAL!
Only SELECTIONS are reported and analyzed. And somebody has to come out the end of the funnel for there to be a “selection”.
Training Requirements for AAP
Asked by Anonymous - Mar 19, 2019
Does OFCCP have training requirements for the Females & Minorities AAP?
-Who needs to be trained - employees, supervisors, hiring managers, executives, recruiters? -What topics should be covered? -Is there a frequency requirement for employees to take training?
Hello, We are planning to bring onboard (covert a current contractor) to a Mechanical Engineer that will be located in Hawthore CA, working on our company's behalf on a customer site.
Our company is headquartered in NJ. The new hire currently resided in NJ. This new employee to be placed on CA site will spend the majority of his time in CA. Will fly to NJ once a month for no more than 5 days.
My questions: Based on this work schedule and location, will the new hire be considered a CA employee? What do we need to do as a Company to ensure we maintain compliant hiring processes? He will get per-diem and accommodation reimbursement when visiting NJ, correct?
Occasionally we will have employees respond 'Yes' to the Disability Self-ID form and then further specify their condition by either writing it on the form or by circling one already listed on the form. Due to the sensitive nature of medical information, we prefer that the specific condition not be included on this form.
Is it the employee's right to provide specific information on this form or may we ask the employee to submit a revised response form? If they refuse, can we white-out the specifics?
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