AAP recording for staff agencies
I am a little confused if my company needs to create an AAP. As a staffing agency we place individuals on an as needed basis to our clients who happen to be government subcontractors. For the positions that require a clearance we are listed on the DD 254 as the subcontractor, since we hold the clearances. To my understanding below are the requirements needed to complete an AAP. We as a staffing agency do not have any direct federal contracts or subcontracts with guaranteed funding. Nor do we bill the government directly for labor hours worked by our temporary individuals. We invoice the client, and they provide payment directly to us in the form of a company "logo" check. So as a staffing agency would we need to create an AAP?
-50 employees/$50,000 Federal contracts or
-Government bills of lading totaling $50,000 or
more in 12 months
The law on this is very confusing and companies are often surprised to learn they may be federal contractors. (41 CFR 60-1.40) Further, there may be disagreement between the OFCCP and a company on whether a company is in fact a federal contractor. There has been significant litigation with respect to jurisdiction (the requirement to have an AAP). It is not as clear cut as one might expect. The rules on whether a company needs an AAP are vaguely defined since "subcontracts" and "contract" are not defined in the regulations. There is nothing that requires the funding be guaranteed, only that the value of the contract meet the threshold. The DD 254 Further muddies the waters for your company. It becomes a question of risk. If the OFCCP says that is has jurisdiction, the company should be prepared to respond. Note that section 60-3.10 does require the company with which you provide employees to analyze data, regardless of your company's contractor status.
IWD & Veteran Goals
We currently have a company goal to hire 7% of veterans and 7% of individuals with disabilities. We also have a Minority Workforce Goal.
New this year, we embedded D&I actions into our executives business lines for the hiring of minorities and women but we did not include actions for Individuals with Disabilities and Veterans.
Any best practices around that?
Please note that the practices for outreach for veterans (vets) and individuals with disabilities (IWDs) are slightly more aggressive in a sense. Companies are required to determine how current methods are working and then essentially re-evaluate connections to find more sources of these groups. The new Part 60-741.44(f)(3) requires that the contractor evaluate and "If the contractor concludes the totality of its efforts were not effective in identifying and recruiting qualified individuals with disabilities, it shall identify and implement alternative efforts listed in paragraphs (f)(1) or (f)(2) of this section in order to fulfill its obligations." Part 60-300.44(f) covering veterans has similar language. To answer your question as best I can, there must be some kind of action also embedded for recruitment of these two groups. The best practice is to engage face to face and establish relationships. Document dates, times, names, etc. There are some groups listed on the OFCCP website where you can start. If there are military installations from where you can recruit, that may be a good source. Local employment service centers also typically have a vet representative. Your employees may be a part of groups from which to recruit.
IWD Accomodation Statement
We are currently looking at adding our Individual with Disabilities Accommodation Statement to our Applicant Tracking System (Taleo) to increase IWD candidates and hires at our bank.
Are there any best practices around this?
As a best practice, you should include your disability accommodation statement at the beginning of the application process. This should be prominently displayed and not buried deep in other pages on your career site. This would notify applicants that you are an equal opportunity/affirmative action employer and it would provide them with information on how to request an accommodation during the application process. Ideally, it should include the name of the person to contact, a phone number and/or an email address, and the process for requesting an accommodation. The simple way to think about it is: If an applicant had a disability that required them to request an accommodation in order to apply, would they be able to do that? Would they be able to find the contact information right away? If they contacted that number, would they be able to get the assistance they need to complete the application? That is the general principle behind this.
Beyond posting your disability accommodation statement, you might also want to test your online application system to make sure that all of the relevant information can be read by an applicant who is using a screen reader or other assistive technology. Some best practices for website accessibility include providing text equivalents to images and other visual material, providing captions for audio or video files, providing the ability to increase font sizes, and the like. You can find more information on website accessibility best practices on the Job Accommodation Network (JAN)
Executive Order 13706
I wanted to clarify Executive Order 13706 on paid sick leave for federal contractors. We are not sure we fall under the requirements. We are a collection agency contracted by the department of Education collection on defaulted student loans. The SCA wages do not state it as a required benefit and the Ex Order states that it applies to new contracts and replacements effective 1/1/2017. Our contract was initiated November 2016. It also states it applies to federal contracts for construction and “many types of federal contracts for service.” We didn’t feel it applied to us. But now we are wondering if it does or if we should implement it to error on the side of caution. I would love to hear your thoughts on this matter. Thank you for your time in advance!
Executive Order 13706
is enforced by the Wage and Hour Division, and is not under OFCCP enforcement. This Executive Order applies to new and replacement contracts with the federal government “that result from solicitations issued on or after January 1, 2017 (or that are awarded outside the solicitation process on or after January 1, 2017)."
This covers contracts that fall under the following major categories:
1. Procurement contracts for construction covered by the Davis-Bacon Act (DBA)
2. Service contracts covered by the McNamara-O’Hara Service Contract Act (SCA)
3. Concessions contracts, including any concessions contracts excluded from the SCA by the Department of Labor’s regulations at 29 CFR 4.133(b)
4. Contracts in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public
5. Any subcontract of a covered contract that (like the upper-tier contract) falls into one of the above four categories
That said, the Rule will still apply to a contract in effect before January 1, 2017, if it is renewed, extended, or amended on or after January 1, 2017.
The best approach for you would be to contact the Wage and Hour Division or consult with an AAP attorney to determine whether your company is subject to the requirements of EO 13706 based on the specific contract that you have.
Record-keeping requirements for temporaries and direct hire placements
First, I like some further clarification on whether Protected Veteran and Disability status needs to be collected on temporary hires as well as direct hire placement referrals that are sent over from a third party staffing firm. For temps, we've only been collected race/ethnicity and gender, so should we have our approved third party staffing firm vendors begin to collect the Protected Veteran and Disability Status information via our form for the Vets and OFCCP's form for the IWD's. Please clarify.
Secondly, we are currently collecting most direct placement hire self-Id info, including Protected Vets and Disability status via our ATS, however, I recently learned that we are not directing all of those referrals to apply online directly to the position, even though they meet the Basic Qualifications, but may not have the exact preferred skills and experience we are looking for. This results in us not capturing their Self-Id information anywhere nor do we ask out third party staffing firm to track or provide that information to us. That being said, do you recommend that I advise our TA team to have any third party referrals that meet BQ's, which are all be directed to our website to apply directly to the position? Currently we are just having those that either are being phone screened and/or interviewed, however, still were initially reviewed by either a Recruiter or Hiring Manager on our end.
Yes to both questions. Federal contractors are responsible for ensuring that their third party vendors are collecting the self-ID data for race, gender, veterans, and individuals with disabilities. Likewise, it is incumbent on the federal contractor to solicit this data for all candidates who meet the minimum qualifications. Having them apply to the website is a good way to accomplish this.
Yes to the first question. The regulations enforced by OFCCP specifically state that, "The use of an employment agency does not relieve an employer or labor organization or other user of its responsibilities under Federal law to provide equal employment opportunity or its obligations as a user under these guidelines." Title 41 CFR Sec 60-3.10. That means that any obligation a company has, remains regardless of whether the company uses a third party service to assist with hiring. It makes sense if you think about it - the rules are the same regardless of how you get to the finish line.
To the second question, yes, if that helps you capture the required data. The company is obligated to collect it. Soliciting the self-ID information at the point of application is required and critical to be in compliance, so if applicants directed to the company website will accomplish this, that is likely to be a good choice.
Tracking of Race & Gender of applicants
What is the recommendation for implementation of OFCCP DIR 2008-02?:
FIELD ENFORCEMENT GUIDANCE: Compliance Officers should adhere to the following principles when evaluating the use of race and ethnicity categories in the AAPs prepared by federal contractors in accordance with the Executive Order, as amended:
A.Contractor data tracking responsibilities remain the same.(4) Accordingly, self–identification will remain the preferred method for compiling information about the sex, race or ethnicity of applicants and employees. A contractor’s invitation to self–identify race or ethnicity should state that the submission of such information is voluntary. However, contractors may use post–employment records or visual observation when an individual declines to self–identify his or her race or ethnicity.(5)
Specifically, this statement:
However, contractors may use post–employment records or visual observation when an individual declines to self–identify his or her race or ethnicity.(5)
We do want to better understand how applicants are progressing through our process and where they are dropping off. Our ATS does allow us to update race/gender. When someone has opted for "I choose not to disclose" on the electronic application, we can update race/gender in the ATS, and there is an audit trail showing that we did so. This would be valuable for us from a data/analytics perspective, so we can target where we may be losing candidates of various protected statuses and target our efforts accordingly. But is this a good practice? Is it better to leave candidates in an unknown race/gender than to use visual observation to update this information?
As you note, the regulations allow visual observation when an individual declines to self-ID. As you also point out, using visual observation provides the data needed for analysis. So, if you want to have the most accurate assessment of where candidates are falling out of the process, visual observation is going to be helpful. While OFCCP does not require employers to use visual observation, they have been known to cite contractors when the rate of unknowns is extremely high, as it often indicates that the contractor is not making a best effort in the process of inviting candidates to self-ID.