In a previous article, we talked about the fact that the OFCCP has tools to answer your questions. So let’s continue that conversation with some more FAQs and tools on some of the most asked-about topics.

Section 503

We have all begun collecting data, conducting outreach and analyzing our organizations according the new 503 regulations, but contractors still have a lot of questions, and here are the tools the OFCCP has provided to answer them. OFCCP has provided a Section 503 Checklist to help contractors conduct self-assessments on their progress, a Sample Affirmative Action Program, a webpage dedicated to the subject, and of course, my favorite, the FAQs. Let’s dig into a few that you may not be aware of.

Q: Some contractors may find that it is necessary to make non–substantive changes to the self–identification form to ensure that the form is accessible to employees and job applicants with print disabilities. These changes could include, for example, changes to the font, margins, and colors used on the form. Are contractors allowed to make these types of changes to the self–identification form?

A: Yes. Contractors seeking to ensure that the form they use is accessible are allowed to alter the margins of the form, change the color of the section headings, remove or change the color of the border surrounding the text of the form, or make other similar non-substantive changes if those changes are required to make the form accessible. Contractors may also use HTML to make the form accessible. However, contractors may NOT:

  • Alter the content (i.e., text or wording) of the form;
  • Alter the order of the content on the form; and
  • Alter the form or make changes that diminish the general accessibility of the form.

Q: How should non–responses to the invitation to self–identify as an individual with a disability be treated when conducting the utilization analysis?

A: The regulations require contractors to conduct an annual utilization analysis to determine the representation of people with disabilities in each job group, or if it has 100 or fewer employees, in its workforce as a whole. To calculate the percentage of a job group (or workforce) that is comprised of people with disabilities contractors should use the same methodology used to calculate the percentage of a job group (or workforce) that is comprised of any other specific demographic group. Specifically, contractors should compare the number of individuals identified as having a disability to the total number of employees in the job group. Non–responses should be counted solely in the job group (or workforce) total, unless the contractor has actual knowledge that a particular non–responsive individual(s) has a disability. The contractor may count as an individual with a disability any individual who it actually knows to have a disability, whether or not the individual chose to self–identify.

Q: The new regulations require contractors to “conspicuously store” the “EEO is the Law” poster with, or as part of, an electronic application. Does this mean that an actual physical or electronic copy of the poster must be individually stored with each application?

A: The purpose of this requirement is to ensure that applicants who apply for jobs electronically are informed of their equal employment opportunity protections as part of the application process. Although including a copy of the poster with every electronic application will satisfy the requirement, the regulations do not require contractors to do this. Rather, a contractor may choose to satisfy this requirement in any way that ensures that every electronic applicant has the opportunity to view the poster during the application process, such as by displaying a prominent link to the poster, along with a brief explanation of what the link connects to, as part of their electronic application.

VEVRAA

Similar to Section 503, contractors are well on their way to implementing the new VEVRAA regulations. Likewise, OFCCP has provided a Sample Affirmative Action Program, a webpage dedicated to the subject and FAQs. The reason FAQs are my favorite of the OFCCP tools is because it gives us insight into how the OFCCP interprets the regulations. While I highly suggest reading and interpreting the regulations for yourself, the FAQs are a good start toward understanding the regulations and how to implement them. Here are few you may not be aware of:

Q: Do the new VEVRAA regulations change the requirements for conducting outreach and recruitment?

A: The new regulations provide examples of outreach and recruitment activities, but retain the flexibility for contractors to choose and utilize the outreach and recruitment activities that work best for them. To determine whether the chosen methods of outreach and recruitment have been successful, the new regulations require that contractors annually assess their outreach and recruitment efforts and document this evaluation. The evaluation must include the criteria the contractor used to evaluate the effectiveness of each effort and the contractor’s conclusion as to whether each effort was effective. If the contractor concludes that [the] totality of its efforts were not effective in identifying and recruiting qualified protected veterans, it must implement alternative outreach and recruitment methods. Contractors must retain their evaluations for three years to allow them to assess the success of their outreach and recruitment efforts for veterans over time.

Q: How should contractors list job openings for “remote jobs,” that is, jobs that are full–time telework positions from any location, in order to comply with VEVRAA’s job listing requirement?

A: VEVRAA requires that contractors list all employment openings which exist at the time of the execution of the contract, and which occur during the performance of the contract, with the appropriate employment service delivery system (ESDS) where the opening occurs. Typically, the location of a job opening, or where a job opening “occurs,” is the location to which the employee must report for work. For a job opening that does not require the employee to report to, or work from, a specific location, a contractor may satisfy the job listing requirement by listing the job opening with the state or local ESDS where the work unit, division, department or supervisor to which the employee will report or be assigned is located.

Q: Are federal contractors permitted to combine all of the Equal Opportunity (EO) clauses required by 41 CFR 60–300.5(a), 41 CFR 60–741.5(a), and 41 CFR 60–1.4(a) (or for construction contractors, 41 CFR 60–4.3(a)) into a single, consolidated “incorporation by reference” clause?

A: Yes, contractors may combine all of their required EO clauses into a single “incorporation by reference” clause, provided that the entire combined clause is set in bold text and the prescribed content of the veteran and disability EO “incorporation by reference” clauses is preserved. The following example provides one illustration of how this might be done for a supply and service contractor:

This contractor and subcontractor shall abide by the requirements of 41 CFR 60–1.4(a), 60–300.5(a) and 60–741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability or veteran status.

Internet Applicant

This is the topic we all love to hate. The Internet Applicant Rule turned 10 last year and it is still the topic that I get the most questions on. I often wonder why after all these years we are still struggling with this rule. Social media, applicant tracking systems and the changing job market have transformed the face of recruiting, and we find ourselves scrambling to apply these rules to new situations. Take the time to understand the rule, develop procedures that are followed consistently, and lastly, document, document, document.

Q: What if after establishing the basic qualifications for a position, more applications were received than expected. How can the pool of applications to be considered be narrowed to a manageable size?

A: If a large number of individuals meeting the basic qualifications apply, the contractor has three options. First, the contractor may use data management techniques to limit the number who must be contacted to determine their interest in the position, assuming the sample is appropriate in terms of the pool of those meeting the basic qualifications. Second, the contractor could screen expressions of interest to determine whether some job seekers have removed themselves from consideration based on information the individual has provided in his or her expression of interest, such as salary requirements or preferences as to type or location of work, provided that the contractor has a uniformly and consistently applied policy or procedure of not considering similarly situated job seekers. Finally, the contractor may screen the pool of job seekers possessing basic qualifications for additional preferred qualifications to narrow the pool of those to be further considered. However, demographic information must be solicited from all job seekers meeting the basic qualifications originally established prior to qualification screening, assuming they meet other elements of the Internet Applicant definition.

Q: What if after establishing the basic qualifications for a position, fewer applications were received than expected. How can the pool of expressions of interest be broadened? Can the contractor go back and make exceptions to basic qualifications?

A: Contractors may search for basic qualifications serially or in combination. They may search a database for some, but not all, of the basic qualifications and not screen further for the remainder of the basic qualifications. If so, the contractor must solicit demographic data for individuals meeting the subset of “basic qualifications” actually used for screening job seekers, provided the other Internet Applicant criteria are met. A contractor cannot make exceptions to basic qualifications on a case–by–case basis without soliciting demographic information from all job seekers meeting the basic qualifications actually required for anyone to be considered further for the position.

Q: What do contractors do with searches for basic qualifications of an external resume database that produce false positives? For example if a search was made of an external database for a computer programmer with JAVA experience, the search results may include people with coffee shop java experience. Is the contractor obligated to retain all resumes produced by the JAVA search?

A: No. Only those individuals with computer programmer JAVA experience would meet the basic qualification. Those with only coffee house java experience would not possess the basic qualifications. Accordingly, the company would not be required to retain the resumes of those with only coffee shop experience.

So whether you have a quick question, need a template or want to dive into one of the OFCCP’s regulations, I would suggest getting the information straight from the horse’s mouth. That being said, don’t ever hesitate to contact myself or one of the other affirmative action consultants to assist your organization in its efforts toward affirmative action compliance.