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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  • New Jersey Company w 1 new hire in CA
    Asked by Anonymous - Mar 13, 2019
    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?

    Thank you very much,

  • Specific Disability Disclosed on Self-ID Form
    Asked by Anonymous - Mar 12, 2019
    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?

  • Internal Hires and Applicant Flow
    Asked by Anonymous - Mar 08, 2019
    In our Plan, we count internal hires as promotions or transfers, not as new hires. When I hire an internal candidate for one of our requisitions, should I delete that requisition out of my applicant flow and all of the other applicants, both internal and external who applied to that req?
    Answered by Ellen Shong-Bergman from Ellen Shong & Associates - Mar 12, 2019
    The short answer, Anonymous, is that a contractor may not destroy any employment record for so long as it is required to be maintained. To do so is, in itself, a violation of OFCCP regulations. The period of time items such as applicant and related records are required to be maintained varies, but since you are apparently speaking of a current record it would not be prudent to do what you ask. I know that's not very helpful but this is a more complicated question than you may realize.

    I am currently finalizing an article for the OFCCP Digest, another valuable source of employer information on this site, that deals specifically with your issue. It will address what you should "call"/how you should "count" internal selections as well as address what I think might be another concern...whether a contractor MUST or even SHOULD post ALL jobs... particularly those for which it may already have identified an employee who it wants or intends to select, or one who is "in line" for the job.

    I believe my article will be in the next issue of the Digest -- due out next week. If publication is delayed, I'll come back to your question and provide as much more information as I can in the space available. In the meantime, please don't delete the requisition or any other applicants from your "applicant flow" or any other data. There IS a better practice, I promise!

  • Mandatory Job Listings with an ESDS
    Asked by Anonymous - Mar 06, 2019
    We are a construction company that utilizes temporary agencies to help staff our manufacturing plants. Are the temp agencies we use expected to also follow the same posting requirements as we are as a Federal Contractor? I was referring back to the presentation that LJN put on last summer on Outreach Targeting Veterans, Individuals with Disabilities, and More, and trying to decide what role they play into all of this, and how much of the requirements the temp agencies have to follow. I know they already post to the State job boards, but not sure if there is more they need to do. Thanks!

  • Posting Days
    Asked by Anonymous - Mar 05, 2019
    Our university currently requires all postings to be open for a minimum of five days to the general public. We are considering extending the number of days to match other universities who range anywhere from 5 to 21 days. As an affirmative action contractor, we see the benefit of extended days as: more time for applicants to compose a thoughtful application; allows time to feed to job boards; gives job seekers at least one weekend to review, gives hiring teams the time to review the diversity of the pool; however, we have gotten immense push back from our stakeholders. Do you have any thoughts on whether opening the posting longer does support a better recruitment? It doesn't appear OFCCP has made an official statement on posting days. Do you have any advice, resources or content that we could use to support our position?
    Answered by Marilynn L. Schuyler from Schuyler Affirmative Action Practice - Mar 05, 2019
    Excellent question. Providing more days for posting provides the best opportunity for reaching diverse candidates. It sometimes takes several days for a job announcement to reach a constituent group, so organizations need as much lead time as possible to reach potential candidates. Extending the time also allows you, the federal contractor, to assess whether the applicant pool is diverse enough to go forward with the next step in the selection process. More time may be needed to reach additional potential sources for qualified diverse candidates.

  • English Proficiency Minimum Qualification
    Asked by Anonymous - Feb 21, 2019
    Good afternoon,

    We have a question regarding the presence of English proficiency minimum qualifications in job postings. Hiring units in our company have been requesting the addition of the following minimum qualifications to their job postings:

    * Must be able to communicate effectively in English.
    * Must be proficient in English.

    What are your thoughts regarding these types of English minimum qualifications? Are there circumstances where this type of requirement is appropriate? What limitations exist in the use of these minimum qualifications, if any?

    Thank you, in advance, for your thoughts.

    Answered by Roselle Rogers from Local JobNetwork™ - Mar 04, 2019
    You are absolutely correct in exercising caution. Employers should think twice and be very careful about imposing English fluency and English-only requirements in job qualifications and in the workplace, as this may constitute discrimination on the basis of race and/or national origin under Title VII of the Civil Rights Act.

    There are very narrow circumstances where this is permissible and I strongly recommend you do this under the direction of your employment counsel. For guidance, I would encourage you to refer to the following in “Part V: Language Issues” of EEOC’s Enforcement Guidance on National Origin Discrimination:

    “Generally, an English fluency or English proficiency requirement is permissible only if required for the effective performance of the position for which it is imposed.[105] An individual's lack of fluency in English may interfere with job performance in some circumstances, but not in others. For example, an individual may be sufficiently proficient in English to qualify as a research assistant but, at that point in time, may lack the fluency to qualify as a senior scientific writer who must communicate complex scientific information in English.[106]

    Because the degree of fluency that may be lawfully required varies from one position to the next, employers are advised to assess the level of fluency required for a job on a case-by-case basis. Applying uniform fluency requirements to a broad range of dissimilar positions or requiring a greater degree of fluency than is necessary for a position may result in a violation of Title VII.”

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