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OFCCP: Ask the Experts
OFCCP Ask the Experts
OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS
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.
Is Discharge for Discussing Pay a Valid OFCCP Cause of Action?
Asked by Anonymous - Apr 18, 2018
I am involved with a company that had an OFCCP complaint filed against them by a former HR employee. The employee had been fired for using her access to other employees' salaries to seek a raise for herself. She accessed this information without requesting any permission from either the individual employees whose information she accessed and without the approval of her superiors. The company has been informed that they were within their rights to fire the employee due to the exception for discharging HR employees (or payroll EEs) who have access other employees' salaries and use that access without permission or approval.
However, now the former employee has filed a retaliation complaint with the OFCCP, alleging that the company's stated reason for firing her was just a cover and she was actually fired for discussing her pay. Her complaint has no reference to pay discrimination based on race, sex, or veteran status. Is this a valid cause of action that the OFCCP would address or provide relief for?
It is unusual for OFCCP to receive or investigate individual complaints. Most OFCCP actions are an outgrowth of an affirmative action compliance review rather than an individual complaint.
With that said, OFCCP does have the right to investigate complaints regarding violations of its regulations, and applicants and employees do have certain protections regarding the discussion of pay under the agency's revisions to the Executive Order 11246 regulations. These revisions are an outgrowth of Executive Order 13665, which is titled "Non-Retaliation for Disclosure of Compensation Information". (The regulations themselves, interestingly, are titled "Government Contractors, Prohibitions Against Pay Secrecy Policies and Actions." They can be found in the Federal Register at https://www.gpo.gov/fdsys/pkg/FR-2015-09-11/pdf/2015-22547.pdf.) Regardless of what they are called, the revisions to Executive Order 11246 prohibit federal contractors and subcontractors from taking action against applicants or employees for discussing pay. The relevant language is as follows:
41 CFR Section 60-1.4(a)3: "The contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee’s essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the contractor’s legal duty to furnish information."
Note that not all discussions about pay are protected, and it appears your situation may fall into one of the exceptions to the prohibition against taking action for discussion pay. The important language in the federal language for these purposes is as follows:
41 CFR Section 60–1.35: Contractor obligations and defenses to violation of the nondiscrimination requirement for compensation disclosures. (a) General defenses. A contractor may pursue a defense to an alleged violation of paragraph (3) of the equal opportunity clauses listed in § 60–1.4(a) and (b) as long as the defense is not based on a rule, policy, practice, agreement, or other instrument that prohibits employees or applicants from discussing or disclosing their compensation or the compensation of other employees or applicants, subject to paragraph (3) of the equal opportunity clause. Contractors may pursue this defense by demonstrating, for example, that it disciplined the employee for violation of a consistently and uniformly applied company policy, and that this policy does not prohibit, or tend to prohibit, employees or applicants from discussing or disclosing their compensation or the compensation of other employees or applicants. (b) Essential job functions defense. Actions taken by a contractor which adversely affect an employee will not be deemed to be discriminatory if the employee has access to the compensation information of other employees or applicants as part of such employee’s essential job functions and disclosed the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, and the disclosure was not in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the contractor, or is consistent with the contractor’s legal duty to furnish information."
It is possible OFCCP will take the position that your former employee was not acting improperly if she did not share the pay information with others and you do not have a policy that explicitly prohibits HR employees from looking at the pay of other employees. That will be something you should be prepared to discuss during this OFCCP investigation.
You asked whether the former employee needs to have her retaliation claim based on race, sex, veteran, or disability status. The answer here is "no." The prohibition against retaliation for discussing pay is decoupled from the traditional protected classes that are the usual subjects of an OFCCP investigation.
You may want to have a conversation with an attorney who is very familiar with OFCCP laws and regulations about the complaint that has been filed. The pay secrecy rules (also called the pay transparency rules) are relatively new and the situation you discuss above is potentially a complicated situation under these regulations.
GAIN/ GROW programs in Los Angeles County
Asked by Karen E. - Apr 18, 2018
Is there an available state workforce agency listed that participates in providing participants in the Los Angeles County's Department of Public Social Services (DPSS) Greater Avenues for Independence (GAIN) or General Relief Opportunity for Work (WORK) Program? We are being asked to be willing to consider GAIN/GROW participants for future employment openings, if they meet the minimum qualifications for that opening. I did not see these programs listed in the Local Job Network. If it's possible to add, I would like to have Linkage Agents set up to ensure that our positions are sent and reported.
We are re-surveying our workforce using the voluntary self-identification of disability form. We are looking to create our own electronic version of the form to more easily survey our employees. We have the requirements in regards to font, size, OMB number, expiration date, etc. However, it says the forms contents must not be altered.
My question is, is it acceptable to have the whole form on one page on our electronic survey? Or must we have it on two pages like the actual paper version is? (i.e. the reasonable accommodation notice is on the second page)
It should be acceptable to have the survey on one page. OFCCP's primary interest is in ensuring that the entire contents of the survey is maintained. The fact that it is two pages in a printed form is a function of the fonts used, the amount of content included, and so on rather than a function of the desire to have a two-page form.
If you want to be entirely safe, you could include the headers above the section of your electronic form with the reasonable accommodation notice. (By the headers, I mean the title "Voluntary Self-Identification of Disability" and the information on the upper right of each each page.) However, so long as you keep all of the original contents of the survey form, you shouldn't have a problem even if the second page headers are omitted.
I will note that the fact OFCCP SHOULD accept this approach won't necessarily stop some compliance officer from raising concerns about any reformatting you do. However, this is one of those times that a call to a district director, the regional office, or the national policy office should allow you to do what you have suggested.
Converting Student Interns to Regular Full Time Employees
Asked by Anonymous - Apr 13, 2018
We hire many student interns for our pipeline recruiting. They come back each summer until they graduate. They are kept on the payroll and come back each summer, some work on projects throughout the year. When we want to hire them permanently, do we need to create a posting for them to apply? It seems this would be discouraging for others who see this listing since we know we want to hire them. In addition, they initially competed for the intern position in the beginning and we have been developing them for several years. Currently we are posting these jobs, however it is creating extra work and we feel it is misleading to external candidates and to our internal employees when we already know who we want to put in the position, since we have invested a lot of time and money on these students throughout the years.
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Apr 14, 2018
No, you do not need to post those jobs. The posting requirement only applies when a company is hiring from the external pool. Since the interns are staying on the payroll and thus employees of the company, it appears that they would be undergoing a promotion or a transfer (from PT to FT perhaps). Positions filled internally do not need to be posted for external pools.
Posting Job that can hire a Manager or Director depending on experience
Asked by Abel D. - Apr 03, 2018
We are a federal contractor. What is a common, compliant way of posting a job that has flexibility to hire at a manager or director level depending on experience?
I would typically post at the higher level but notate in the job requirements that the position can be hired as a manager or director depending on the skills and experience.
There is no prescribed way for posting the job you described above. However, in checking with OFCCP, what you would want to make sure of if you post the jobs together and eventually hire at the higher or lower level depending on skills and experience, is that you do not inadvertently open the door for placement discrimination. This can happen if you end up with a situation where you have (a) intentional or unintentional steering/placement of female applicants (or minority applicants) into the lower paying job, and/or (b) the 10 most qualified applicants for the higher paying position just happen to be males (or non-minority applicants).
So as a best practice, you would want to set the minimum and preferred qualifications for each job level before applicants are known, and apply these uniformly. Using minimum qualifications is much “cleaner”, but obviously are more restrictive. If you are going use preferred qualifications in your evaluation, make sure these are quantifiable, job-related, and objective. You might also want to have each applicant indicate whether they want to be considered for one or both jobs and keep a record of this. This way, you are able to justify your hiring decision based on employee preference and employer qualification.
Staffing Agency-Required Notice & Compliance
Asked by Paige H. - Mar 30, 2018
We are a Federal Prime contractor & Sub-Contractor who places IT employees on Federal and State contracted projects. These are our employees working on a state or federal work site. Sometimes we must reach out to a staffing company to fill specialized positions when our sourcing/postings are not producing qualified candidates. I've been told previously that being a Federal Contractor, any staffing company or sub-contractor we use, whether for a Federal or State position, must be compliant with OFCCP guidelines when recruiting and also receive the required "our company is a federal contractor" notice.
Two questions: 1. If our state position pays our company with state funds, must our staffing/sub-contractor company follow OFCCP guidelines and also receive the required notice? 2. If so, do we need to require them to send recruiting documentation or just have it available in case of an audit?
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - Mar 30, 2018
This one is a little complicated to answer without knowing the facts I’m more detail. However, I hope The info below is helpful as a guide.
1. If the individual is an employee of a company that is a federal Contractor or subcontractor, then the company must follow the OFCCP regulations, including ensuring that the proper clauses are a part of the subcontracts. When it is unclear due to the facts whether this language is required, it may ultimately come down to how your company feels about risk if your company and the OFCCP disagree - that is, would the company want to litigate the matter. From the facts above, it is likely that the company would want to include the language.
2. The company is responsible for the AFL and hires (or candidates, if the agency sends a few potential employees from whom to choose). It’s important that the agency use ONLY the hiring criteria given by your company, and not additional criteria. It’s important to request the applicant and hire data so that your company can run the required analyses, to prevent surprises an audit. The regulations state that using a third party agency does not exempt the company from non discrimination obligations, so it’s best to ensure the company understands what’s going on with the data at the hiring agency.
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.