- ERE.net - http://www.ere.net -
OFCCP Clarifies Rules to Make Clear It’s All Up to You
Posted By John Zappe On August 23, 2012 @ 4:46 pm In News and Features | 3 Comments
You know the four criteria for defining an Internet applicant are:
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:
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.
Article printed from ERE.net: http://www.ere.net
URL to article: http://www.ere.net/2012/08/23/ofccp-clarifies-rules-to-make-clear-its-all-up-to-you/
URLs in this post:
 Image: http://www.ere.net/wp-content/uploads/2010/08/department-of-labor.jpg
 at least as Berkshire Associates sees it: http://www.berkshireassociates.com/infocenter/whitepapers.aspx
 Image: http://www.ere.net/wp-content/uploads/2012/08/OFCCP-chart-berkshire.jpg
 can trigger an OFCCP audit: http://minnesotaemployer.com/2012/08/20/eeo-1-reports-can-trigger-ofccp-audits/
 The government says: http://www.dol.gov/ofccp/regs/compliance/faqs/iappfaqs.htm#Q6RK
 In searches where you expect large numbers of candidates: http://www.dol.gov/ofccp/regs/compliance/faqs/iappfaqs.htm#Q7DM
 Campus recruiters only need to retain records: http://www.dol.gov/ofccp/regs/compliance/faqs/iappfaqs.htm#Q16RK
 Fulbright & Jaworski note:: http://www.lexology.com/library/detail.aspx?g=9bca716b-6440-4334-b40a-db098c58a6f5&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+Federal+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2012-08-22&utm_term=
Copyright © 2008 ERE Media. All rights reserved.