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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.
No, Elizabeth, you need not have exactly the same “disqualifying criteria” for both internal and external job seekers – always assuming, of course, that such differences really ARE BASED SOLELY ON THAT STATUS. I hope I’m understanding that you would use as a reason something that was peculiar to that status and not something that could possibly be attributed to/associated with race, gender, etc. Or to deciding that a “basic qualification” that had already screened out external job seekers – and discouraged others -- would not screen out internal job seekers! NOTE: If that’s what you want to do, please ask the question again with some more details so that I can reply to those facts that are different than what I am assuming. That is, I’m assuming that would there be NO difference in the screening questions with respect to qualifications (education, experience, work history, etc.). Similarly, if this is a location/re-location issue, please include that in your question. I’ll try hard to comment on and help you achieve whatever is your lawful objective, but I no doubt could be more helpful with more information.
I inferred from your question that you wish to have reasons – and the concomitant disposition codes – for screening out internal job seekers than would not even be applicable to external job seekers. (If my inference is incorrect, please elaborate.) For example, I think most employers have (and properly should have!) "rules" that apply to internal applicants that would, at best, be illogical for external applicants. Since disposition codes must reflect as accurately as possible WHY the job seeker did not rise to the status of "Internet Applicant" or WHY an Internet Applicant did not advance to the next step in the selection process or was not offered the position it may be, in fact, NECESSARY to have some different “disqualifying criteria” – and disposition codes -- for internal job seekers.
A contractor might have a rule that an employee must be in his or her current position for at least six months to be eligible for another one. If an employee nevertheless expresses an interest in a vacancy, s/he may be eliminated PRIOR TO any consideration of even "basic qualifications" and thus, not "counted" as an applicant (Internet or otherwise). This is comparable to "rules" requiring that expressions of interest be submitted electronically, or accompanied by a resume; or requiring that an application be completed irrespective of whether a resume is supplied or -- for both internal and external job seekers (notice how I keep NOT using the word "applicants" until they are!) that the expression of interest must be submitted by a specified date.
Employers may always establish "ground rules" for the manner in which interest is expressed -- the only imperative is that the rules be applied uniformly for the same job. (Different rules may be in force for different jobs -- such as accepting applications when there are no vacancies only for hard to fill positions – though I discourage that because "pipelines" are a VERY tricky compliance challenge -- particularly with respect to record keeping.) And employers may lawfully change the "rules"/policy/procedure. There must be no discriminatory reason (nor would it be wise to do so in the middle of the selection process for a specific vacancy) and, of course, document, document, document.)
Internal are very different from external job seekers in an obvious and very important way: the employer already knows something about their job performance. If you advertise to internal job seekers that "basic qualifications" for the position include, for example, not being under an attendance restriction (or not applying for more than three opportunities at a time, or whatever) you should certainly have such a code(s) to disposition the applications for such employees who apply anyway. Performance appraisal ratings are so likely to be problematic that I would hesitate to make this a "basic qualification" but I would certainly recommend a disposition code to record this as the reason for non-selection (at whatever point in the process that occurs) if that's, in fact, the reason for the denial. (And do please start collecting data to analyze whether there's a statistically significant difference in the ratings of similarly situated men and women and various minority group members!)
There may be other ways in which you treat -- or wish to treat -- employees differently than external job seekers, in which case I strongly encourage you to have disposition codes that will record the non-discriminatory basis for that different treatment. Although your question concerned disqualifying criteria, the employer may also treat internal job seekers more favorably than external job seekers. For example, it's perfectly lawful for an employer to post a job internally only before inviting expressions of interest from the outside. Or, to serve its own needs, an employer may give an internal applicant more time to start in the new position than it would be willing to give to a new hire. Whether disqualifying or more favorable, it would be very helpful if your Applicant Tracking System identifies internal and external job seekers for purposes of extracting data for the required analyses.
I hope this has been helpful. Please feel free to ask again with more details
Asked by Anonymous - Feb 06, 2019
I am putting together our AAP for our region (Oregon). I noticed that there are different minority benchmark % depending on location within a state. What % do you use, if you are creating an AAP for an entire region (state)? Thank you for the help.
Unless you are a construction contractor (and if you are, please ask the question again and say so) I assume your question refers to performing the Availability Analysis that the regulation (41 CFR 60-2.14) requires be performed for EACH Job Group and SEPARATELY for minorities and women. While the OFCCP annually established the percentage "benchmarks" for the hiring of veterans and for hiring of individuals with disabilities, the contractor must establish its own annual AAP Goals for women and minorities using the method mandated by regulation. The regulation requires the contractor to consider at least two factors; the first one involves estimating the percentage of minorities and of women who have the requisite skills who are outside the AAP workforce (external availability). The other factor is concerned with internal availability.
Your question relates to Factor 1 in determining estimated availability. Factor 1 is the percentage of women and the percentage of minorities -- having requisite skills -- in the "reasonable recruitment area" So the answer to your question is: IT DEPENDS! First, it depends on what the "reasonable recruitment area" is for EACH particular Job Group. It's unlikely that this geographic area, whether it is Oregon or perhaps the Pacific Northwest Region, or even as narrow as the immediate labor market surrounding the facility, or perhaps as wide as the entire United States is the same for each APP Job Group. Think: entry level labor or clerical positions versus Treasurer. Or Physicists versus Accountants. How far afield must the contractor typically seek qualified workers for the positions in the Job Group? Questions to ask yourself are: how many of the current incumbents in the Job Group were hired locally? For what jobs do we pay relocation expense? Does this Job Group include positions that we sometimes/always/never outsource to search firms?
Factor 1 also depends on the skills necessary for each Job Group. Contractors must use the most recent and most accurate statistics available. For each of many different geographical areas (i.e. “reasonable recruitment”) in the country, data from the last U.S. Census are available showing the percentage of women and of minorities who were working in jobs that vary from Boilermaker to Attorney to Landscaper, to Teacher, etc. -- a variety of occupations that are the closest proxy we have for “requisite skills”. A state job service may also provide statistical data, possibly more current but typically in much broader occupational groupings. The availability of minorities, regardless of skills, may be different in Oregon than in Mississippi – or Vermont. And, regardless of where the contractor recruits, the availability of women Carpenters is probably quite different than the percentage of women having requisite skills as Accountants. Consequently, the AAP writer must have knowledge of and take care in identifying the “reasonable recruitment area” separately for EACH Job Group.
[ESB Note: Estimating availability is WILDLY speculative. Among other things, the very best available data available – which is not necessarily very good -- will always be HISTORICAL although an AAP Goal is PROSPECTIVE. And, census data comes in only a few hundred occupational categories when in American workplaces there are thousands and thousands of very different jobs and job requirements. For example, with the possible exception of the college degree, for even the quite narrow census occupational category of “Electrical Engineer” the “requisite skills” are very different for such engineers working in electric power companies and those working in manufacturing.]
Factor 1 deals with external availability. Factor 2 deals with the estimated INTERNAL availability of minorities and women who might be promotable, transferrable, or trainable to move INTO (not within) the Job Group whose availability is being analyzed. [ESB NOTE: In this context “internal” means within the specific AAP workforce; not the entire company.] Remember also, this calculation is an annual exercise and determines the annual percentage goal, if any, for the upcoming AAP Year only. It may be that only when estimating internal availability of minorities and women for a Job Group of “Journeyworkers” will a contractor have such accurate data as the percentage of minorities and women in the final year of training in its Job Group “Apprentices”. More typically, the contractor would use the incumbency rate of women and minorities in whatever job(s) or Job Group(s) “feeds” the higher-level Job Group for which availability is being estimated.
[ESB NOTE: VERY often the manner in which Job Groups are designed (including, sometimes even especially, those encouraged by OFCCP compliance officers!) creates significant challenges in estimating availability. This has a “ripple effect” on both the comparison of incumbency to availability and the reasonableness of/ability to meet goals. The availability percentage will determine not only IF a goal must be established (i.e., if the difference between incumbency of minorities and/or women in the Job Group is "less than reasonably expected") but also the SIZE of the hiring/selection rate goal if one is, in fact, required.]
I’ll expand my answer to briefly address some other mandatory considerations in the estimating of availability of minorities and women for each AAP Job Group. The OFCCP regulation is quite detailed in its expectations of the rigor with which contractors will perform this estimate of availability. The applicable OFCCP regulation imposes considerable structure on how to arrive at what will always be only an “estimate” of prospective availability for the upcoming AAP Year. For example, if in a single Job Group there are multiple jobs with different "requisite skills" (a very common situation, particularly in a small workforce) the contractor must give different arithmetic weight to the varying availability percentages else it either underestimate or overestimate “availability” of minorities and women for the entire Job Group. See 41 CFR 60-2/14(g). This “weighting” is used to arrive at a “composite availability” for the Job Group. Typically, this is done using a special software application but it IS doable (if tedious!) manually. For example, and very simplistically, if the contractor has established a Job Group of "Professionals" (I hope it hasn't, that's much too broad but it does happen) and the Job Group has 40 incumbents of which 36 are Nuclear Engineers (an availability of women in the recruiting area of 5%), two incumbents is an accountant (for which female availability is 50%), and two are Human Resources Specialists (for which Factor 1 availability of women is 50%), one may NOT simply add together those percentages (105%) and divide by 3 to arrive at the availability of women for the Job Group. The resulting estimated availability of 35% women for this theoretical Job Group is demonstrably inaccurate! What good faith effort could possibly be expected to produce an applicant pool of 35% women for vacancies for Nuclear Engineers? Need I add that the flip side of this situation would be equally intolerable: the OFCCP would certainly challenge an understated availability of women and minorities arrived at by combining in a Job Group job titles that are similar in EEO-1 code (NOT a regularly design criterion!) but not similar in “wages, content and opportunity”, the latter of which ARE the regulatory design criteria.
To be consistent and by inference if not regulation, one must also be able to justify what weight it has given Factor 1 versus Factor 2 in the overall estimate of availability, as well as any other situations where there are multiples, i.e. availability percentages of women and minorities in multiple Feeder Jobs/Job Groups or multiple “reasonable recruiting areas” should also be “weighted”. With respect t
Nationwide Goals for AAP
Asked by Anonymous - Feb 06, 2019
What are the nationwide percentage goals for IWDs, veterans, women and minorities?
I am pretty familiar with OFCCP regulations, but I can't find good information about how to think about promotions.
In our current system, we do not promote employees in the usual fashion. What we do is open the position internally, have people apply, and then give the job to the best qualified person. This is very taxing on time but is the only way we know how to stay compliant.
There must be a mechanism where federal contractors can promote people without going through that whole process. Am I reading into it too much? Or are we truly playing by the book? Is there a process I can implement so we can shoulder-tap and stay compliant?
OFCCP has never provided effective guidance regarding promotions. Many people read the agency's "Internet Applicant" regulations as a guideline to dealing with promotions, but a close reading of those regulations suggest that they were developed to deal with issues surrounding new hires (that is, external selections) rather than promotions (that is, internal selections).
OFCCP does not force employers to provide an avenue for employees to express interest in every internal opening. The agency recognizes that some internal openings will be filled through natural progression or through the selection of an obvious candidate for the opening. What OFCCP does require is that employers ensure there is no discrimination in regard to the selection process for internal or external openings.
There is value in providing a mechanism for employees to express interest in internal openings. From a regulatory perspective, such a mechanism establishes a clearly defined pool of candidates for the opening. From an employee morale perspective, such a mechanism establishes that the employer is interested in the welfare and advancement of employees. However, this does not mean that every internal opening must provide for a mechanism to consider multiple candidates.
The best course of action is to establish a policy for which internal openings will be opened to multiple candidates. A policy that says "All openings except those where there is a natural line of progression will be posted for employees to express interest" would be one approach to dealing with situations where there are these natural lines of progression. A policy that says "All openings except those in senior management" or that says "All openings except those at a defined grade or wage level" would also be acceptable to OFCCP so long as such a policy does not artificially prevent any particular demographic group from receiving consideration.
You ask "Is there a process I can implement so we can shoulder-tap and stay compliant?" The old-fashioned "shoulder tap" is a form of promotion where you should be wary. Designating certain employees for advancement may be entirely logical where there are pre-defined criteria suggesting that a particular employee is the obvious choice for a new position. However, giving managers full discretion to determine who should be promoted without establishing some type of criteria for advancement and without providing a mechanism for others to advance may lead to decisions that will be questioned by OFCCP.
OFCCP compliance reviews tend to hing on the following idea: have we selected the best qualified person for open positions? A posting procedure where employees are asked to express interest in new positions and there are established criteria used to determine who is best qualified is one way to demonstrate that the best qualified person has been selected. However, a policy that explicitly lays out paths for promotion and provides job-related limitations in who might be considered would be another way to demonstrate that the best qualified candidates has been selected.
You do not need to post every position internally. You do need to have a mechanism to demonstrate that a person chosen for promotion is the best qualified employee for the new position.
Asked by Melissa W. - Jan 23, 2019
Where can I find anything about impressions, clicks or applications which will allow us to compare an ROI for our ad?
Most employment websites should be able to provide you statistics on the performance of your job advertisement. Customers of LocalJobNetwork, for example, are able to pull up a report that would show how many job seekers viewed their ad and how many job seekers applied to the job. This Job Activity Report can be accessed when a customer is logged into their account, under the Report Menu. You can also reach out to your Client Services Associate and we'll be more than happy to help you generate the report.
Asked by Anonymous - Jan 09, 2019
Would it be appropriate/compliant to add a disposition code to indicate that while the candidate may be qualified, they live out of state and relocation is not offered? If so, how is this best worded?
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Jan 09, 2019
It is within compliance requirements to have such a disposition. The challenge with all dispositions is to apply them consistently without making exceptions. If there is a "hiring radius" for a particular job, it should not cause adverse impact. It also may vary by job. (An admin position may be filled locally, but a harder to fill job is likely to be filled from a wider radius.) As with any disposition, ensure that there is a solid foundation for the requirement. For example, if employees have generally come from a 25 mile radius, then using that area for the definition would be more supportable than an arbitrary guess. However, if there is adverse impact from that particular disposition code, including area limitations, it is very important to determine whether the requirement is necessary or can be modified. For example, noting in the job announcement that relocation expenses are not authorized for the particular position.
I am a strong believer in disposition codes that record the actual reason the job seeker was eliminated from further consideration -- provided, of course, that the reason is not one that is discriminatory on its face (disparate treatment). If ANY reason for rejecting a job seeker who also meets the definition of Internet Applicant disproportionately excludes a particular race/gender/national origin group the employer must be able to articulate the business necessity for that reason so I certainly agree with Lisa that reasons for non-selection (and the corresponding disposition codes) should be narrowly drawn and be well grounded in fact and the employer’s experience. And I agree wholeheartedly that the employer’s unwillingness to pay relocation expenses is properly a part of any job announcement.
And I also believe there there is something else to consider: whether it could be both the the responsibility -- and the right? -- of the job seeker to decide to compete for a position that requires un-reimbursed relocation.
I, generally, do not recommend that employer’s make such decisions “for” the job seeker. To me this is too reminiscent of the days when employers excluded women (largely) on the assumption that they 1) wouldn’t/couldn’t work (unscheduled) overtime or night shift, or 2) wouldn’t/couldn’t travel overnight or 3) wouldn’t/couldn’t work outside/in dirty workplaces, etc. Even granting these assumptions weren’t a pretext for misogyny, it had the same effect as deliberate discriminatory treatment.
It is absolutely the right of the employer not to waste its resources pursuing a person who wants/is expecting company paid relocation. So, when it comes to relocation (or other terms and conditions of employment) I think the best practice is to ASK question on an application -- such as “Are you willing to relocate at your own expense?” -- that will permit it to avoid investing its resources pursuing a person who really wants a job that's different than the one it has advertised!
There are many personal reasons why a particular job seeker might be wishing to change locations as well as jobs. If, for example, the job seeker is currently looking for a job across the country because his – or her – spouse is being relocated to that area (perhaps at another employer’s expense!) and the employer arbitrarily excludes from consideration any job seeker whose current address isn’t within whatever its geographical parameters are, the employer may well have lost out on someone who might be a highly competitive applicant/excellent employee.
ALSO – and thereby obviating ANY potential “disparate impact” challenges – if the job seeker says “No” to your “relocate at your expense” question, that individual is NOT an Internet Applicant. S/he hasn’t applied for the job you have – which does not include relocation expenses. Another way to think of it is that s/he has implicitly “withdrawn” the expression of interest because she is not willing to accept the terms and conditions of the position -- for reasons that are utterly irrelevant to qualifications.
I believe it is prudent for employers to – CONSISTENTLY job by job -- encourage people to “opt out” themselves a) by providing what I term a “realistic job preview” of the job’s demands/working conditions/start date, etc. and/or asking such questions on an application AS EARLY AS POSSIBLE IN THE PROCESS so that neither party wastes its time being assessed/assessing those with whom there is no “meeting of the minds” about what the job IS and what the job is THAT IS SOUGHT.
No one will (or should) pay a penny of back pay to any person who has disclosed that s/he wouldn’t be available to start work until after graduation in June when you need/want to fill THAT vacancy in February. Ditto the person who won’t work nights or won’t travel (for WHATEVER reason that is none of your business) if the job is on night shift/requires travel. Also true of the person who assumes s/he can negotiate better compensation for the job having been previously told/asked? “would you accept a position paying [the union contract rate of $18.11] [a probationary salary of $41K] [a monthly salary between $74,000 and 90,000 depending on experience/education]. NOTE: This is NOT THE SAME as soliciting compensation history or even “wishes” from an applicant. This is telling every job seeker what the compensation is for the job. Bold, I know! But worth considering, especially in light of a trending prohibition against asking the job seeker to disclose anything about his or her compensation history.
The Internet is a great tool for both employers and job seekers. But it also permits job seekers to "apply" with the greatest of ease and with virtually no expense to hundreds, even thousands of employers. Don't you have the sense that there is an almost universal tendency to "throw it against the wall and see if it sticks"? By both internal and external job seekers! Even with "a realistic job preview" by the employer -- such as adding the "no relocation expenses will be reimbursed" -- there is no guarantee that any particular job seeker actually read the detail provided or, in other words, really wants YOUR job. All the more reason for every employer to do a reasonable "dive" into what each job seeker really wants/actually would accept in a job. Hopefully, the contractor has empirical data on the reasons people don't accept its job offers or terminate before it has even recouped its recruiting and indoctrination costs. I'm sure those reasons are explored early in the selection process -- either by "guessing" from the resume or in an early interview. I'm suggesting those reasons shape some questions you ask BEFORE you've done an assessment of an individuals qualifications, thus triggering record keeping and analytical obligations.
DO use -- and require the completion of -- an electronic application in addition IF YOU WISH to permitting the job seeker to upload his or her resume. Resumes tell the employer what the JOB SEEKER wants to share; well constructed application forms solicit the information THE EMPLOYER wants to know.
Always assuming CONSISTENCY in the employer’s treatment, the OFCCP cannot require employers to pay relocation expenses, or to continue to pay a demoted employee more than the top rate for the job, or to “hold a job open” until after a person graduates, or to eliminate or modify unpleasant or arduous working conditions that are “essential” to the job, or to violate a union contract, or to pay “more”, or to eliminate overtime or shift requirements nor to otherwise change any lawful term or condition of a job.
Employers who both ASK for and TELL information that would predict not hiring even the most UBER-qualified young white male are, in my view, serving the interests of both themselves and job seekers. To further serve contractors’ interests it is essential that disposition codes be established AND USED that will permit the contractor to easily identify -- and then eliminate from discrimination analyses -- those job seekers it has good reason to believe were not seeking – nor were they thus “considered” for -- the particular job for which the analysis is being performed.
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