If so, What is the Expectation of Including Temporary Employees in a Contractor’s AAP?
Back in October 2014, we published a newsletter article discussing whether the OFCCP had set the stage for claiming that temporaries are employees for affirmative action purposes. The article was in response to an OFCCP frequently asked question (FAQ) published on August 5, 2014 regarding the “Employer-Employee Relationship” that addressed the question of when is an individual treated as an employee for the purpose of inclusion in a contractor’s AAP.
On August 27, 2015, the National Labor Relations Board (NLRB) published a decision in the case of Browning-Ferris Industries of California (“Browning Ferris”), 362 NLRB No. 186 (August 27, 2015). In that decision, the NLRB essentially overturned 30 years of NLRB case law regarding when two entities would be considered “joint employers” for the purpose of collective bargaining obligations.
In short, it is now the position of the NLRB that a joint employment relationship may be found to exist between two unrelated entities “…if they share or codetermine those matters governing the essential terms and conditions of employment…” even if one entity does not hire, fire, supervise or determine the wages and benefits of another employer’s employees. The ability of one entity to exercise control over “…dictating the number of workers to be supplied; controlling scheduling, seniority, and overtime; and assigning work and determining the manner and method of work performance…” will be sufficient to establish “control.”
Continue reading Are Employees of Temporary Staffing Firms Also “Employees” of the Federal Contractor Using Their Services?
“Being Big Is Worse Than Being Bad!”1
The question is what happens to the size of the contractor’s applicant pool if the TSF’s recruiting efforts are included? If a contractor is taking on 100-200 temps during the year, how many individuals does the TSF have to recruit to find a sufficient number who meet the basic qualifications for the position? 400? 800? 1,200? Is there a downside of having large applicant pools? Isn’t having more choices a good thing? Does the contractor want to include an additional 1,200 individuals recruited by the TSF in the contractor’s own applicant pool? In reality, there are real and potentially costly implications for agreeing to consider the TSF’s recruiting efforts as part of the contractor’s applicant flow. Continue reading “Being Big is Worse Than Being Bad”
In recent years the OFCCP has become increasingly more focused on the need for contractors to take additional good faith efforts for veterans and the disabled beyond the job positing requirement contained in the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA) and the Jobs for Veterans Act (JVA). In fact, inquiring into outreach for veterans and the disabled and necessitating proof that the outreach is being conducted has become a standard information request during OFCCP compliance reviews. OFCCP is now following up on the information supplied by contractors, and checking references to verify compliance. In some cases, failure to meet this requirement has resulted in conciliation agreements. VEVRAA requires the posting of all jobs with the state employment services where the job exists with the exception of 1) executive or top management, 2) temporary positions of three days or less, or 3) jobs to be filled exclusively from within. The JVA specifies how jobs are to be listed as well as providing additional recommendations that contractors can take as evidence of good faith efforts. Continue reading Listing Jobs with the State Employment Service – Is it Enough?