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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  • 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.

  • Dispositions for Cancelled Jobs
    Asked by Anonymous - Mar 20, 2019
    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)?
    Answered by Marilynn L. Schuyler from Schuyler Affirmative Action Practice - Mar 20, 2019
    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.
    Answered by Ellen Shong-Bergman from Ellen Shong & Associates - Mar 21, 2019
    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?

  • 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!

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