FAQ's

1. Interdependency of operations – are there any staff or function, e.g. finance, human resources, sharing?  Would either the parent or the subsidiary be unable to function if the other ceased to exist?   
2. Uniform labor relations policies generated from a common source – are policies, practices, benefits shared?  Are decisions made across business lines?  Does the parent play any role in the recruitment, hiring, training, or termination of the subsidiary employees?
3. Exercised control – are financial decisions made across business lines?

If answers to the above are "yes" then it is likely that the intra-company relationship would require the development of an AAP.

Q: Who is an Internet Applicant?
A: An internet applicant is an individual who satisfies the following four criteria:

1. The individual submits an expression of interest in employment through the Internet or related electronic data technologies;
   • OFCCP eliminated the dual standard for those positions for which the contractor considers expressions of interest through both the Internet and traditional means. In other words, if the contractor accepts only hard copy resumes/applications for a position, then the final rule does not apply to that position.  However, if the contractor solicits and accepts applications or resumes for the position via the Internet or other related electronic technologies, as well as in hard copy, the new rule applies.
2. The contractor considers the individual for employment in a particular position;
   • An employer is not required to consider expressions of interest that either is not submitted in accordance with the contractor's standard procedures for applying for a job or that are not submitted with respect to a particular position.  For example, if the contractor has consistently applied a practice of not accepting unsolicited resumes, it is under no obligation to start doing so under this final rule.
   • An individual is "considered" when the contractor "assesses the substantive information provided in the expression of interest with respect to any qualifications involved with a particular position".
   • One example of "considered" is when a contractor runs a basic qualifications search that brings up an individual’s resume that shows the number of resume "hits." OFCCP will conclude the contractor has "considered" the resumes that are a result of such a search because a search that displays the resume "hits" is an assessment of the individuals' qualifications.
3. The individual's expression of interest indicates the individual possesses the basic qualifications for the position;
   • "Basic qualifications" refer to: (1) those qualifications that the contractor advertises to potential applicants that they must possess in order to be considered for the position; or (2) that are preset criteria used by the contractor for positions not advertised, such as for pulling resumes from an external resume database. In addition, "basic qualifications" must be:
   • Non-Comparative. Qualifications must not involve comparing the qualifications of job seekers (e.g., 3-5 years marketing experience requirement is acceptable; however, a requirement that the individual be one of the top 10 individuals in terms of experience is not).
   • Objective. Qualifications must not depend on a contractor’s subjective judgment (e.g., a requirement of a college degree in marketing is acceptable, while a requirement that the individual have a degree from a prestigious school is not). A third party unfamiliar with the contractor's operations should be able to evaluate whether the job seeker possesses the qualification.
   • Relevant.Qualifications must be relevant to the performance of the particular job and enable the contractor to accomplish business-related goals.

     SPECIAL NOTE: The OFCCP stresses the fact that employment tests used as employee selection procedures, including on-line tests, are not considered basic qualifications under the final rule. 

4. The individual at no point in the contractor's selection process prior to receiving an offer of employment from the contractor, removes himself or herself from further consideration or otherwise indicates that he or she is no longer interested in the position. Individuals remove themselves from consideration when:
   • the individual has indicated that he or she is no longer interested in the position for which the contractor has considered the individual, based on the individual's express statement that they are no longer interested; or
   • the individual's passive demonstration of disinterest is shown through repeated non-responsiveness to inquiries from the contractor about the position in question (e.g., fails to respond to telephone calls, letters, etc.)¹; or
   • based on information the individual provides in the initial expression of interest (e.g., salary requirements, willingness to travel, shift availability, etc.) if the employer has been consistent in not considering similarly situated individuals.

In 1978, the EEOC adlopted the Uniform Guidelines on Employee Selection Procedures to assist employers determine if their tests and selection procedures were lawful.  These methods of demonstrating job-relatedness are called "test validation".  Employers should ensure that employment tests and other selection procedures are properly validated for the positions and purposes for which they are being used.  The test or selection procedure must be job-related and its results appropriate for the employer's purpose.  While a test vendor's documentation supporting the validity of a test may be helpful, the employer is still responsible for ensuring that its test are valid under UGESP.

EEOC v. Ford Motor Co. and United Automobile Workers of America (December 20, 2007) - settled with a court-approved agreement on behalf of a nationwide class of African Americans who were rjected for an apprenticeship program after taking a cognitive test known as the Apprenticeship Training Selection System (ATSS).  Ford agreed to pay $8.55 million in monetary relief and replace the ATSS with a selection procedure designed by a jointly-selected industrial psychologist, that would predict job success and reduce adverse impact.  ATSS was a written cognitive test that measured verbal, numerical, and spatial reasoning in order to evaluate mechanical aptitude.  Even though the ATSS was validated in 1991, it continually showed to have statistically significant disparate impact by excluding African American applicants.

Position, Performance Management and Related Fair Labor Standards Act (FLSA)Compliance Issues FAQs

Q: Would you change an exempt position for a part-time employee to a non-exempt position because you are paying them hourly?
A:With the exception of certain positions (e.g. teachers), paying on a salary basis is one of the three criteria for classifying a position as exempt. Your company can maintain the exempt status by continuing to pay the employee on a salary basis that as been prorated to account for the reduction in hours. If you want to pay on an hourly basis, the position becomes non-exempt.

Q: How is the exemption for positions in the computer field different than for other positions?
A: The computer employees professional exemption applies to computer systems analysts, computer programmers, software engineers, and other similarly skilled workers in the computer field whose primary duties consist of:

• The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications;
• The design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications;
• The design, documentation, testing, creation or modification of computer programs related to machine operating systems; or A combination of the aforementioned duties, the performance of which requires the same level of skills.

General Human Resources Compliance FAQs

Q: Is it okay to have a probationary period for new employees?
A:  Unless the employee is hired under a collective bargaining agreement, probationary periods jeopardize the "at-will" status. The employment at-will doctrine allows for the employer and the employee to end the employment relationship at any time without notice or reason. Most employers have probationary periods to see if the employee can be successful in their job during a training period. Probationary periods typically identify a time in which the employee can be fired if they are not successful, e.g. 90 days. This implies that after the time period an employee cannot be terminated without cause.  Since the at-will doctrine indicates that an employee can be terminated at any time with or without cause, some courts have stated that probationary periods void the at-will doctrine.

Q: What factors should I consider in deciding on the content for a diversity training program?
A: We find that training is most effective when three criteria are met:

• There is a specific business-related outcome in mind.
• The training is part of a strategy, not an isolated event.
• There is a support structure in place to help ensure that participants practice and use what they learn.

It may be helpful to think about how you would convince your CEO to support the training, participate in it personally, and advocate that the entire senior leadership team also participate. The training should provide knowledge, skills, competencies, or tools that will make participants more effective in achieving the CEO’s key business objectives.

Think about what your CEO’s key business objectives mean in terms of your organization’s employees. What do they need to be their best and most effective? Chances are that this will lead you to the specific business-related outcome for the training.

Once people have participated, they need encouragement to use what they have learned. Effective diversity and inclusion training is about effecting culture change. Consider how annual objectives are set, what behaviors are needed to support the training, and how performance is measured. These are key levers for providing the structure needed to sustain the learning.

Q: What does Employment-at-Will really mean?
A:  The Employment-at-Will doctrine says that when hired, the employee and employer enter into a contractural relationship which may be terminated by either party at any time and for any reason.  Essentially, an employer can terminate an employee for any or no reason, so long as the reason is not illegal, such as violating anti-discrimination laws.  Union employees and other employees covered under an employment contract, are not covered by the at-will doctrine.  Employees should beware of oral or written contracts that may also jeopardize at-will.  Employee handbook may also be viewed as contract, so ensure that you include disclaimers and at-will statements to protect your organization.