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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  • Using Disposition Code "Not Selected: Experience Overly Extensive"
    Asked by Donna R. - Aug 02, 2018
    In other words, the candidate is "over" qualified. This would be the perfect code for our needs, but is it advisable to use? I saw this as an example from another company, but thought it sounded discriminatory? Please advise. Thank you.
    Answered by Roselle Rogers from Local JobNetwork™ - Aug 10, 2018
    The use of disposition codes help you document the reason why an applicant fell out of consideration for the position. They should help you justify your selection decision if you have to defend it. Employers need to be careful about using disposition codes that may disproportionately exclude certain individuals. You are much better off using strategic disposition codes that better identify why a candidate is not qualified, or why a candidate is less qualified than the individual you selected, such as “experience not directly related,” “experience not most recent,” or “not as qualified due to type of experience or type of employer.” Ellen Shong-Bergman has written an extensive two-part article
    on disposition codes in the May and June editions of The OFCCP Digest, where she offered many helpful and strategic disposition codes that employers can use in a variety of situations. Similar questions on disposition codes have been answered in this forum before and I would encourage you to read those answers as well. You can find them by using the search field at the top of this forum and enter “disposition codes”.

  • Resume Database Search / Internet Applicant Rule
    Asked by Anonymous - Jul 31, 2018
    As federal contractors, are we required to disposition the candidates we review in a resume database?
    Answered by Roselle Rogers from Local JobNetwork™ - Aug 10, 2018
    OFCCP’s Internet Applicant Recordkeeping Rule requires federal contractors to save certain records when they conduct resume database searches, whether it is an internal or external database.

    When searching within your applicant tracking system or internal resume database, the records you need to keep are as follows:

    • A record of each resume added to the database
    • A record of the date each resume was added to the database
    • A record of the position for which each search of the database was made
    • The date of the search for each search conducted
    • The substantive search criteria for each search conducted – such as experience, degree, location, industry, and any key words used

    When searching an external resume database, the records you need to keep are:

    • A record of the position for which each search of the database was made
    • The date of the search for each search conducted
    • The substantive search criteria for each search conducted – such as experience, degree, location, industry, and key words used
    • The resumes of job seekers who met the basic qualifications for the particular position who you considered for the position. You are not required to maintain the resumes of individuals if you did not consider them for the position. You are also not required to maintain a record of searches that do not produce candidates that meet the basic qualifications.

    It would also be beneficial for you to document any data management techniques you used. For example, your company may have a policy of only reviewing the first 50 resumes.

    When you are selecting from within the applicants who have applied to the position, you are required to keep a record of any tests, test results, and interview notes. While there is no OFCCP requirement for contractors to use disposition codes, it is in the contractor’s best interest to use strategic disposition codes that record all of the following:

    • The stage in the selection process when the candidate was removed from consideration for the position
    • The reason for removing the candidate from consideration
    • The person who made the decision to remove the candidate from consideration

    For more guidance on this topic, see OFCCP’s Frequently Asked Questions on the Internet Applicant Recordkeeping Rule.

  • Contract staffing agencies
    Asked by Jennifer L. - Jul 24, 2018
    When using agencies for temporary roles, what are our requirements in terms for the contract with the agency (what language should we have listed in the contract)? What are the things we need to ensure they are doing/documenting?

    Answered by Roselle Rogers from Local JobNetwork™ - Aug 10, 2018
    If your company is a prime federal contractor, you are required under the regulations (§60-1.4 Equal Opportunity Clause) to include in all of your subcontracts and purchase orders, unless exempted, the provisions stated in paragraphs (1) through (8) such that these will also be binding upon your subcontracts and vendors. These provisions cover non-discrimination, affirmative action, including an EEO tagline in all solicitations for advertisement, recordkeeping, as well as reporting.

    The regulations also specifically address the use of staffing or employment agencies under §60-3.10.

    A similar question has been answered in this forum by Bill Osterndorf and Lisa Kaiser before. I would encourage you to check out their responses as well. You can do a quick search for the related question by entering “temp agency” in the keywords search field at the top of this page.

  • Questionnaire
    Asked by Michelle H. - Jul 24, 2018
    We are looking at setting up a pre-screen questionnaire for our Machine Operators as part of the pre-interview selection process. Does the AA information need to be gathered at this level or only when a formal application is submitted?
    Answered by David Cohen from DCI Consulting - Jul 24, 2018
    Hi Michelle,
    Under the Internet Applicant regulation you would need to collect race/ethnicity and sex data from those individuals that were provided the pre-screen questionnaire as it would most likely be considered a test. If your pre-screen questions only assess if the individual possesses the basic qualifications you would not need to collect race/ethnicity and sex data as those individuals that do not meet the basic qualifications would not be considered applicants.

  • Exempt Vs. NonExempt
    Asked by Anonymous - Jul 17, 2018
    We are trying to understand best practice with a position we're posting in regards to Exempt vs. Nonexempt and FLSA. The position is a Talent Acquisition Coordinator/HR Admin. This position is the entry point for our company - it'll be the lowest level position at the company (private, DOD contractor). The role is complex because it'll be supporting both talent acquisition and HR administration. The salary range will actually be in the mid - upper $50k's. While it is the entry point in the company, this individual will support multiple HR functions. There are currently no other roles at that level in the company. Should it be exempt or nonexempt?
    Answered by Carey Freitag from Local JobNetwork™ - Jul 25, 2018
    In order for a position to qualify for exemption under the Fair Labor Standards Act (FLSA) minimum wage and overtime pay requirements, the job duties and salary must meet the test specified in the regulations. The FLSA allows for the exemption of bona fide executive, administrative, and professional positions as long as they meet the requirements. Other positions may also qualify for exemption as listed in the FLSA guidelines.

    Based on your description of the position, the Administrative Exemption test is most likely the one you would want to review. To qualify for the administrative employee exemption, all of the following tests must be met:

    • The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week;
    • The employee’s primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and
    • The employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.

    For more information please refer to the Department of Labor’s Fact Sheet #17a.

  • Best practice on hiring an intern to full time
    Asked by Samantha D. - Jul 11, 2018
    We're a government contractor and every year we bring on a cohort of paid, summer interns. Each intern formally applies to our company for the internship position. At the end of their internships, we make full-time offers to some of the interns. What is the best practice in terms of converting them to full time employees at the end of their internships? Does each intern need to apply again to a full-time open requisition? Do we need to open and compete requisitions that we know these interns will fill since they've been already working for us? Can we simply add them as full-time staff without having to open a full requisition?
    Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Jul 12, 2018
    Hi Samantha,

    Assuming there are distinct criteria for hiring the interns (from your other hires), they are likely their own pool of applicants and hires for such purposes as your adverse impact analysis and record keeping requirements. Once interns are brought on as employees, if a company converts them to full time, they are more likely to fit your definition of a transfer or promotion. If there is a break in employment, then they need to apply and be hired like any other rehire. (Though rehires are sometimes not in the same pool for analysis purposes as first time hires.)

This forum provides information of a general nature. None of the answers or information provided is intended as legal advice or opinion relative to specific matters, facts, situations, or issues. Additional facts and information or future developments may affect the subjects addressed. You should consult with an attorney about your specific circumstance before acting on any of this information since it may not be applicable to your situation. The Local JobNetwork™ and all experts expressly disclaim all liability with respect to actions taken or not taken based on any or all of the contents of this forum.