Information and Answers you can trust

Q: What legal posters do employers have to post?
A: There are certain labor law posters created by the federal and state government that must be posted in all businesses where employees are working. These posters generally contain information for employees and must be placed where employees can easily see them. They are required by federal labor and safely laws.

However, some poster requirements depend on the type of business. For example, not all small businesses are required to post the Family Medical Leave Act. To help you determine which posters are required of your type of business, use the link below which will lead you to the Department Of Labor’s – elaws – FirstStep Poster Advisor which will take you through the steps to find out.

webapps.dol.gov/elaws/posters.htm

Q: Are there additional posting requirements for affirmative action employers?
A: Yes, while most of the affirmative action posting requirements are covered within the “Equal Employment Opportunity is THE LAW” section of Federal posters, there is an additional requirement to post the Pay Transparency Nondiscrimination Provision. Federal contractors and subcontractors are also required to post the Notice of Employee Rights Under Federal Labor Law (Executive Order 13496) poster.
Q: What does the term “Internet applicant” mean?
A:

An Internet applicant is defined in the OFCCP regulations as an individual meeting four criteria:

1) Individual submits expression of interest in employment through the Internet of related electronic means

A) Current Open or Future Position
B) Solicited or Unsolicited (unless your policy does not allow unsolicited)
C) Includes resume databases and job banks (such as Monster, CareerBuilder, or LinkedIn)

2) Company considers the individual for employment in a particular position

A) Assess substantive information
B) Can refrain from considering by using protocols or data management techniques

3) Individual possesses the basic qualifications for the position

A) Advertised or established (job description)
B) Non-comparative, objective, and relevant to position
C) Uniformly and consistently applied

4) Individual remains interested (until offer made)

A) Explicit (declines job interview)
B) Implicit (passive – does not respond to two or more emails or phone calls OR effective – salary requested is more than position available)

Q: What records do we have to keep for “Internet applicants”?
A: 1) All employment records (resumes, applications, interview notes, etc.) for two years starting with anyone expressing an interest for a particular position who is considered (Criterion #2).

2) All database searches including date, position for which you are searching, criteria used in search, and each resume or record you considered that met basic qualifications.

Q: How do we legally ask applicants for their race/ethnicity information? As a government contractor, can we require applicants to give us their race/ethnicity information?
A: Self-identification is the preferred method for obtaining race/ethnicity and gender information. As a government contractor, you cannot require applicants to give you their race/ethnicity information. Thus, the applicant must be able to move forward in the process without disclosing their race/ethnicity, gender, veteran or disability status. However, you are required to solicit race/ethnicity, gender, veteran and disability status from everyone who meets the definition of an Internet applicant.
Q: May we guess the race/ethnicity of applicants for whom we do not have that information?
A: Self-identification is the method by which you should obtain all applicant race/ethnicity and gender information – you should not guess. However, you are required to guess the race/ethnicity of employees who do not self-identify race/ethnicity and gender (you must report all employees on the annual EEO-1 Report).
Q: What is meant by the term “religious accommodation”?
A: Religious accommodation means that an employer must try to allow employees to practice their religious beliefs while still maintaining their employment unless it causes an undue hardship on the employer. Each situation is unique and not all accommodations can be made, but the employer must show that it made an attempt to honor the request of the employee.

Some common examples of religious accommodations made by employers include flexible scheduling (allowing employees to take Fridays, Saturdays, Sundays, or religious holidays off work) and allowing employees to wear religious symbols and clothing. Examples of when religious accommodations cannot be made include scheduling issues requiring an employer to violate the seniority rights of other employees or allowing an employee to have facial hair when doing so would cause the employee to be unable to use a required face mask safely.

Q: Are “minimum qualifications” and “basic qualifications” the same thing?
A: No. “Minimum qualifications” are written to define all of the lowest level of qualifications desired for that particular position. “Basic qualifications” are similar, but are particular to the OFCCP’s Internet Applicant Regulations. These basic qualifications have additional stipulations such as the basic qualification must be non-comparative, objective, and relevant to the particular position. A knowledgeable third-party must be able to determine whether an individual meets basic qualifications. Basic qualifications should include things that you can get off an application. You should not have “soft skills” like communication skills as basic qualifications, because you can only assess those types of skills in person. However, minimum qualifications will be more comprehensive and could include things like soft skills.
Q: How do we make our website application process accessible to individuals with disabilities?
A: The easiest and first thing to do is to put a contact name, number, and email address for applicants to contact if they need an accommodation in the application process. This notification should be prominently displayed on your career home page or job listing site. This individual/department must take applications over the phone, arrange to meet and assist an applicant, or arrange other accommodations requested. If an individual with a disability cannot apply using your online system, you must provide an alternative way for them to apply. Any kiosks for completing the application process must be accessible to individuals with a disability. Additional useful information on this topic can be found through the Partnership on Employment & Accessible Technology (PEAT) at http://www.peatworks.org/.
Q: How do I know if and when my company has to develop an affirmative action program?
A: In general, only those companies holding “contracts” with the federal government are required to develop affirmative action programs — or AAPs. However, for supply and service contracts there are three different sets of government regulations requiring written AAPs for three different types of programs. Each of the three have slightly different thresholds. For more information, please see Federal Contractor Obligations at a Glance.

In trying to answer this question for your particular company, a good place to start is with your Contracts Department or legal counsel. Read the fine print in your contracts and purchase orders. The answer will almost assuredly be there. Look for clauses that say something like … The parties hereby incorporate by reference the following clauses: 41 CFR §60-1.4(a); 41 CFR §60-300.5(a); 41 CFR §60-741.5(a).

For supply and service contracts, the “contract” can either be direct with a federal government entity or as a subcontractor to a company that has the direct contract. Banks and credit unions are covered since they serve as a depository of Government funds (regardless of amount) and/or are covered by the Federal Deposit Insurance Corporation (FDIC) or National Credit Union Association (NCUA). Different rules and different AAP requirements exist for construction contractors — see 41 CFR §60-4.

A short list of exceptions exist. In the end, this is a legal question — not an HR question — and the determination of your company’s status as a government contractor should be answered by counsel.

Other information or tools that may be helpful:

Affirmative Action Regulations for Executive Order 11246
Affirmative Action Regulations Covering Certain Veterans
Affirmative Action Regulations for Section 503 of the Rehabilitation Act
Affirmative Action Regulations for Construction Contractors

Q: What is the difference between an affirmative action program (AAP) and a diversity program?
A: The simple answer is government regulation. Workplace affirmative action programs are governed by at least three sets of regulations issued by the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP). (Links to those three are provided below.) Diversity programs can be whatever a company wants them to be and are usually designed as organizational development tools to change the culture of a company in some way. While diversity programs are not covered by government regulations, they still must operate within the law and it is considered prudent to have them preceded by an organizational assessment. Since a self-critical analysis is actually part of an AAP, those organizations that have both types of programs will often use their AAP results as part of the assessment and reason for their diversity program. Here is a comparison of what the two types of programs must or can cover:

AAPs Must Cover Diversity Programs May Cover
  • Minorities1
  • Women
  • Accommodation for Religious Affiliation
  • National Origin
  • Certain Veterans
  • Individuals with disabilities
  • All forms of ethnic, cultural and religious status or other affiliations
  • People with disabilities
  • Men and Women
  • Marital status
  • Parental status
  • Sexual orientation
  • Generational differences
  • Economic status
  • Political status
1 Race/ethnic categories as currently defined for AAP purposes are: (1) Hispanic or Latino, (2) White, (3) Black or African American, (4) Native Hawaiian or Other Pacific Islander, (5) Asian, (6) American Indian or Alaska Native, and (7) Two or More Races.

These links might also be helpful:
Affirmative Action Regulations for Executive Order 11246
Affirmative Action Regulations Covering Certain Veterans
Affirmative Action Regulations for Section 503 of the Rehabilitation Act
Affirmative Action Regulations for Construction Contractors

Q: How do I determine and then explain affirmative action goals to management?
A: As part of the Affirmative Action Plan for Minorities and Women, your workforce is examined to determine whether minorities or women are employed at a rate less than reasonably expected given availability in the recruiting areas for different jobs. If the number of minority or female incumbents is less than reasonably expected, you will set goals for hiring and promotions (and other placements) during the coming AAP year. For an example, please see Explaining AAP Goals to Managers.
Q: The Department of Labor sent us a letter requesting our “Executive Order Affirmative Action Program.” What is that and what do we send?
A: It is your unlucky day — you have just received an audit scheduling letter. You have 30 days from the receipt of that letter to send in your “desk audit package” to the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP). You are required to send a copy of your Executive Order 11246 compliant, current-year Affirmative Action Program for Minorities and Women, your Affirmative Action Program for Veterans, your Affirmative Action Program for Individuals with a Disability, and additional reports/data specified in the Itemized Listing enclosed with the scheduling letter. These additional data include up to 18 months of hires, applicants, promotions, and terminations data and compensation data for your company. First, check to make sure you are a government contractor. If you are not a government contractor, you may not have to submit the AAPs and additional data. If you are, you should ensure your AAPs are current, prepare copies, and prepare the additional data and reports as soon as possible to meet the 30 day deadline.
Q: What does the OFCCP look for in an audit?
A: The OFCCP is looking for many things in an audit including compliance with job listing requirements, evidence of outreach and accommodations, and of course they will look for evidence of discrimination. They will review your workforce make up, employee compensation, and employment transactions to look for discrimination. Even if the discrimination is unintentional (disparate impact) the OFCCP may issue a finding of discrimination. If the OFCCP comes onsite, they will review your employee bulletin boards for required labor law posters, examine your facility to ensure access for individuals with a disability, and conduct manager and employee interviews.
Q: What does an OFCCP conciliation agreement look like and how long does it last?
A: If the OFCCP finds deficiencies during an audit, they will require the contractor to enter into a “conciliation agreement.” This agreement corrects any deficiencies and requires the contractor to report back to the OFCCP, usually at six-month or one-year intervals. The conciliation agreement may last anywhere from six months to two years and may include significant back-pay as well as reporting requirements.