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OFCCP Clarifies Rules to Make Clear It’s All Up to You

by Aug 23, 2012, 4:46 pm ET

If your employer does business with the federal government, you already know — or should know — the rules about Internet hiring.

You know the four criteria for defining an Internet applicant are:

  • An expression of interest (as in sending in an application);
  • Meets the basic qualifications (education, years of experience, geography, etc.);
  • You “considered” the individual for a job;
  • The person never withdraws from consideration.

And you know about the recordkeeping requirements.

Now comes clarifications of these rules from the Office of Federal Contract Compliance Programs that won’t make life any easier, but which do, at least, make it clearer what records to keep and who is responsible for keeping them.

These aren’t new rules; just explanations of how the OFCCP interprets the rules, and how it will apply them to you, should you be audited. These audits, at least as Berkshire Associates sees it, have undergone “an ideological shift from compliance assistance to compliance enforcement.”

In “OFCCP Audit Trends: Specificity and Inconsistency,” the authors write, “OFCCP is conducting less audits overall, but the percentage of audits closing with conciliation agreements has tripled since 2008.”

With HR departments nationwide preparing for the annual EEO-1 filing, which, if sloppily done, can trigger an OFCCP audit, the clarifications come at a particularly good time.

To cut to the chase, the clarifications make very clear that employers are responsible for all recordkeeping. It doesn’t matter if an RPO or an employment agency does the searching and vetting for you. The government says:

The contractor’s recordkeeping obligations are the same whether it screens job seekers itself or whether it contracts with an employment agency to screen job seekers on its behalf with the employer’s selection procedures.

You can have the agency keep the records for you, but, warns the OFCCP in its newly posted FAQs, “the contractor will be held accountable if the specified records are not maintained.”

These details and a number of other clarifications of existing rules are contained in the OFCCP’s list of frequently asked questions. Conveniently, the clarifications are marked with a “NEW” so you know where to look.

In addition to making more explicit the recordkeeping rules when recruiting firms are involved, the OFCCP also explains what records need to be kept when external databases are searched.

The key clarifications are these:

  • You must maintain a record of all the resumes you search if you search external databases using any kind of software that “reviews job seekers’ qualifications and ranks job seekers based not merely on whether they possess the basic qualifications but on an assessment of the extent to which they possess those qualifications vis-à-vis other candidates.” This is giving “consideration.”
  • In searches where you expect large numbers of candidates to meet the basic qualifications for the job, you can limit the number you have to store by taking a random sample of them, or by setting up search parameters that drill down on the specific characteristics that define an “applicant.”
  • Campus recruiters only need to retain records if they meet with students to discuss a specific job. A general discussion of the company, types of jobs, skills it wants, and so on won’t lead to a records retention requirement, so long as the recruiter “advises all students that job seekers must apply through the contractor’s web site to be considered for particular positions.”

Check the OFCCP’s FAQs to see the other clarifications, which relate to job fairs, niche and diversity databases, and job descriptions. However, as labor attorneys with Fulbright & Jaworski note:

One of the most important points the OFCCP reiterates (is that) a contractor must be able to show that it has maintained required records; the failure to do so may lead to a presumption that the information destroyed or not preserved would have been unfavorable to the contractor…

The contractor cannot rely on an external resume database or recruiting agency to fulfill its recordkeeping obligations. Moreover, a contractor can be held accountable for any recordkeeping deficiencies caused by its third-party recruiting agencies.

This article is provided for informational purposes only and is not intended to offer specific legal advice. You should consult your legal counsel regarding any threatened or pending litigation.

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  • Martin Snyder

    This rule has been in violation of Executive Order l12866 (http://www.whitehouse.gov/omb/inforeg_riaguide)from day one.

    The rule’s fatal flaw is that it only addresses active candidates, which are pretty much post-recruitment outputs v. passive candidates, which is where one would assume that much of the illegal discrimination that occurs is actually happening.

    There has never been the slightest showing that discrimination is happening via use of keywords: like voter fraud, it seems a lot easier in theory.

    If you want to truly cut down discrimination (pre-interview anyway), make it illegal to collect name and address info from job applicants until they have been interviewed. Watch the howls you would get from that, even though there is no real business need to know a person’s name or address in terms of employment qualifications…..

    This rule is just simple logrolling so OFCCP could make a rule that would not get kicked back against too hard- it does very, very little about employment discrimination.

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