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.
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  • FQHC Posting Requirements
    Asked by Dayna S. - Nov 21, 2017
    My organization is an FQHC (Federally Qualified Health Center). Are we required to comply with OFCCP?
    Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Nov 22, 2017
    Jurisdiction is often tricky both for contractors and the agency. Being an FQHC doesn’t necessarily make a company required to comply with the laws enforced by OFCCP, but it doesn’t mean that the company is not a federal contractor either. Likely, a little more research needs to be done based on the facts of your situation.

     
  • Timeframe for Data Analysis
    Asked by Anonymous - Nov 20, 2017
    Last year was the first year we were required to develop an AAP and the dates we published were Jan 1, 2017 - Dec 31, 2017. It is my understanding that the analysis of data should be based on a snapshot of a specific date. Does that date have to fall within that year? Or is it the last day of the year and if it's the last day of 12/31/17, what date am I required to publish the 2018 AAP with the data analysis?

    Thank you.
    Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Nov 20, 2017
    The Hires, Applicants, Promotions, and Terminations should be dated beginning (and including) the full year. In your case January 1, 2017 through December 31, 2017. The employee snapshot should be dated December 31, 2017. Best practice in this case is to prepare the plan as soon as reasonably possible after the first of the year. The regulations state that the AAPs must be updated annually. If audited, the company will be required to submit the plan and accompanying data within 30 days, so the plan should be in place before thirty days, of course.

     
  • OFCCP Interview
    Asked by Anonymous - Nov 20, 2017
    I would like to know if an employer has any control over releasing information (name and contact information) for management employees no longer with the company. Also, can the employer ask for a copy of the interview note(s), or have a company representative present during the interview?
    Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Nov 20, 2017
    This is a very good question and a very difficult area to navigate successfully. According to the regulations:

    Sec. 60-1.20 Compliance evaluations. (ii) An on-site review, conducted at the contractor's establishment to investigate unresolved problem areas identified in the AAP and supporting documentation during the desk audit, to verify that the contractor has implemented the AAP and has complied with those regulatory obligations not required to be included in the AAP, and to examine potential instances or issues of discrimination. An on-site review normally will involve an examination of the contractor's personnel and employment policies, inspection and copying of documents related to employment actions, and interviews with employees, supervisors, managers, hiring officials..."

    The regulations do not limit the OFCCP's authority to contact former employees or management, and in my experience, both when I was with the agency and since, they frequently do. The employer can ask for a copy of the interview questions, but I do not expect the agency would turn them over to anyone outside of the OFCCP. It is almost always best practice to have a representative present in any and all management interviews.

     
  • OFFICE On-site
    Asked by Anonymous - Nov 18, 2017
    I would like to know if the OFCCP CO can request an employee (representing management) to come to their office for an interview? Do they have this authority?
    Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Nov 18, 2017
    The OFCCP can make this request. There is nothing in the regulations that prohibits such a request. It is important to understand what the regulations require so that a contractor can draw a clear line between its obligations and what is simply a request. The regulations at Sec. 60-1.20 Compliance evaluations (ii) state that an on-site review is "conducted at the contractor's establishment" and "will involve an examination of the contractor's personnel and employment policies, inspection and copying of documents related to employment actions, and interviews with employees." A company can refuse this request. However, one must consider that such refusal could bring a full onsite visit by the agency. Since compliance officers are already there for one employee, they will often go ahead with additional inspection or interviews.

     
  • Off the street applicants at a unionized project site
    Asked by Becka S. - Nov 16, 2017
    We have a construction project site that has project labor agreements, with various unions, for our construction craft labor needs. Based on the project size we do fall under VEVRAA & Sec. 503, however our PLA requires we staff through the union hiring halls. My question is this;

    If a person walks in off the street and wants to apply for a craft job at the project site can we explain we staff through union hiring halls and provide them information on how they can contact these unions? Also, should we provide these "walk in's" with "An Invitation to Self-identify" form and track their info on an "Off the Street" applicant log?
    Answered by Alissa Horvitz from Roffman Horvitz, PLC - Nov 17, 2017
    The regulations require the construction contractor to "maintain a current file of the names, addresses and telephone numbers of each minority and female off-the-street applicant and minority and female referral from a union, a recruitment source or community orgnaization and of what action was taken with respect to each individual. If such individual was sent to the union hiring hall for referral and was not referred back to the Contractor by the union or, if referred, not employed by the Contractor, this shall be documented in the file with the reason therefor, along with any additional actions the Contractor may have taken." 41 CFR 60-4.3(7)(c).

    I interpret this regulation to permit you to refer this person, who walks in off the street, to the applicable union, but you still have an obligation to keep your own records of who you referred over to the union. Having an "off the street" applicant log that collects address and phone number, too, would meet the requirement to "maintain a current file of the name, address and telephone number." I would encourage you to maintain the log for men and nonminorities, too. Finally, the construction regulations were written (and not updated) since before the disability self-id requirements came into effect. I would encourage you to solicit race, gender, veteran status and disability status of these applicants, where possible. As you appear to note, the disability form is the official OMB-sanctioned form, CC-305, "An Invitation to Self-Identify."

     
  • Disability Self Identify Forms
    Asked by Lauren N. - Oct 25, 2017
    Hello,
    We are in the process of re-surveying our employees and using the Self Identify form as required. However, because the form is two pages, we are getting forms back with only page one and NOT page two. Most likely because they self identify with not having a disability so no request for an accommodation was made. Is this acceptable to only have page one on file? Or should we go back and require each person submit page two? I ask because the form is voluntary, we can prove that they were given both pages, and that they then choose to only provide page one. Please advise.
    Thank you!
    Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Oct 25, 2017
    Hi Lauren,

    You're right, the form is voluntary, but in the event of an audit, it may be difficult to show compliance if many of the forms are incomplete. Where possible, the best practice is to obtain the second page to ensure the company can show evidence of that it is fulfilling its obligations. Good question!

     
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