OFCCP Issues New FAQs on Student Workers
This blog post was contributed by Michiko Clark and Lynn Clements of Berkshire Associates.
In a recent series of FAQs, the Office of Federal Contract Compliance Programs (OFCCP) explains whether academic institutions should include student workers in their affirmative action plans (AAPs) and provides guidance regarding who is considered a student worker.
In the FAQs, the OFCCP defines a student worker as “a student, undergraduate or graduate, engaged in research, teaching, work-study or another related or comparable position at an educational institution.” The OFCCP goes on to elaborate that the primary relationship the student worker has with the institution is educational and that the student’s position has been obtained in conjunction with or as a result of their studies.
In a welcome clarification of the agency’s enforcement position, the FAQs provide that, while the agency will accept student worker data during a compliance review, it will not consider the data when determining any violations. The agency provided several different reasons for its position, including the burden on contractors of determining whether student workers meet the legal test for employee, and that a review of student worker data may take away the focus on examining the personnel practices and outcomes for non-student employees. The agency also indicated that the data for student workers is typically not as robust due to quick turnovers and limited applicant pools.
In another FAQ, the OFCCP clarifies that academic institutions are not required to include student workers in their AAPs and further states that it will not cite a higher education institution for not including such workers in an AAP submitted to the agency for review. The agency will, however, continue to accept complaints filed by student workers.
The FAQs regarding student workers could be an indicator that OFCCP is coming close to finalizing its much-anticipated Technical Assistance Manual (TAM) for colleges and universities. Drafts of the TAM were reviewed by a small number of stakeholders, including CUPA-HR, in the spring. The agency had originally stated that it would publish the TAM by summer, but the publication has been delayed, presumably to address some of the comments or suggestions received from stakeholders.