Demystifying Posting vs. Listing for OFCCP’s Mandatory Job Listing Requirements: There has not been and there is not now (even after OFCCP’s Final VEVRAA Rule became legally effective March 24, 2014) any requirement for federal contractors to “post” their available jobs or to even prove the postings. Rather, OFCCP’s regulatory requirement is simply that the contractor must be able to provide proof to OFCCP (in one of its approximately 4,500 annual audits) of the contractor’s “listing” of available jobs with local Employment Service Delivery Systems (“ESDSs). OFCCP has not changed in its Final VEVRAA regulation the requirement that covered federal contractors and subcontractors merely “list” their available jobs. Here is OFCCP’s historical regulatory requirement which caused (until March 24, 2014) contractors to have to only “list” their available jobs:

“2. The contractor agrees to immediately list (emphasis added) all employment openings which exist at the time of the execution of this contract and those which occur during the performance of this contract, including those not generated by this contract and including those occurring at an establishment of the contractor other than the one where the contract is being performed, but excluding those of independently operated corporate affiliates, with the appropriate employment service delivery system where the opening occurs. Listing (emphasis added) employment openings with the state workforce agency job bank or with the local employment service delivery system where the opening occurs will satisfy the requirement to list (emphasis added) jobs with the appropriate employment service delivery system.” 41 CFR Section 60- 300.5(a)2 http://www.law.cornell.edu/cfr/text/41/60-300.5

Here is OFCCP’s Final VEVRAA Rule which became legally effective March 24, 2014:

“2. The contractor agrees to immediately list (emphasis added) all employment openings which exist at the time of the execution of this contract and those which occur during the performance of this contract, including those not generated by this contract and including those occurring at an establishment of the contractor other than the one where the contract is being performed, but excluding those of independently operated corporate affiliates, with the appropriate employment service delivery system where the opening occurs. Listing (emphasis added) employment openings with the state workforce agency job bank or with the local employment service delivery system where the opening occurs will satisfy the requirement to list (emphasis added) jobs with the appropriate employment service delivery system. In order to satisfy the listing (emphasis added) requirement described herein, contractors must provide information about the job vacancy in any manner and format permitted by the appropriate employment service delivery system which will allow that system to provide priority referral of veterans protected by VEVRAA for that job vacancy. Providing information on employment openings to a privately run job service or exchange will satisfy the contractor's listing (emphasis added) obligation if the privately run job service or exchange provides the information to the appropriate employment service delivery system in any manner and format that the employment service delivery system permits which will allow that system to provide priority referral of protected veterans. 41 CFR Section 60- 300.5(a)2. https://www.federalregister.gov/articles/2013/09/24/2013-21227/affirmative-action- and-nondiscrimination-obligations-of-contractors-and-subcontractors-regarding#h-47

Job listing refers to the act of the federal contractors transmitting their job openings to either the local ESDSs or the state job bank. This can be done in a variety of ways (mail, email, direct entry into state job banks, automatic indexing, direct feeds) as long as the appropriate ESDS system says it is a valid format and enables the ESDS system to conduct priority referrals.

For example, some local offices receiving the VetCentral job feed emails from DirectEmployers listing a federal contractor’s available jobs will forward those emails to their registered veterans first (priority referral) before manually “posting” the jobs to the state job bank. Alternatively, some local offices, after sharing VetCentral emails with the registered veterans (priority referral), print them out and simply make them available to others.)

Job posting refers to the act of the state or local ESDS (not federal contractors) having received the job listings supplied by federal contractors via any of the methods listed above, and “posting” those job listings on the state job bank. Federal contractors are not required to post to state job banks, as long as they can prove “job listing”, as described above. There are two primary reasons OFCCP does not require federal contractors to prove that they “posted” jobs with every local Employment Service Delivery System in America: (1) State workforce agencies and their local ESDSs are mandated under separate legislation (Wagner-Peyser Act) to serve all employers in their search for a qualified workforce. As part of this mission state workforce agencies and local ESDSs, serve employer customers by receiving job listings in a variety of ways. This includes mail, faxes, emails, direct entry into state job banks, automatic indexing and even job feeds. As a subset of the broader employer community, federal contractors must receive the same type of flexible service from state workforce agencies and local areas. Further, state workforce agencies and their local ESDSs have varying methods of distributing job listings to eligible registered veterans (priority referrals). Understanding the need for flexible job listing and the varying methods states use for priority referrals, OFCCP regulations maintain the same flexibility for federal contractors listing jobs with the state or ESDS.

(2) OFCCP has never requested the Office of Management & Budget (OMB) to require contractors to prove up the ESDS’s “posting” of the jobs the federal contractors have available knowing that it would be too expensive and knowing contractors would fail because they are unable to access the various kinds of posting systems of all of the approximately 2,500 local ESDSs in America. Question: May contractors try to prove the ESDSs postings? Sure, but OFCCP does not require this, contractor efforts to do so will be frustrating and expensive with incomplete results leaving one to wonder why they should work harder and spend more than one must to fail at doing OFCCP’s job (in the approximately 4,500 OFCCP audits per year) to prove contractor compliance with the listing requirements? In sum, there is no OFCCP proposal pending at OMB to require federal contractors to either “post” available jobs with local ESDSs or to cause federal contractors to have to prove “postings” (as opposed to merely proving up the contractor’s “listing” of the job with the ESDS)….and OMB would not require a contractor proof-of-posting regulation, let alone a contractor-posting regulation, at any rate. Written by: JOHN C. FOX, ESQ. Fox, Wang & Morgan P.C. and Pam Gerassimides, NASWA