OFCCP Ask the Experts
OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS
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  • Job Applicants vs. Candidates Manually Submitted by Recruiter
    Asked by Anonymous - Mar 07, 2017
    In addition to collecting applications from job seekers for a specific job requisition, our ATS allows our Recruiters to search for an existing applicant for any requisition and submit them to a different/new job requisition manually. These candidates would then be included in the data on which we report for this job requisition.

    What are the legal implications with this? Should we always request that candidates apply directly instead of manually submitting them to a job requisition if we find them to be a competitive match for a new position?
    Answered by Carla Irwin from Carla Irwin & Associates, Inc. - Mar 17, 2017
    For a full explanation of the legal implications I would suggest talking to your employment attorney. However, the OFCCP's FAQs might shed some light on your recordkeeping requirements when it comes to internal and external database searches. There is always going to be a balancing act between proactive recruiting and compliance. Understanding your requirements is key to identifying your level of risk/liability tolerance, which will help you decide what process to use to either get as many or limit the number of candidates in each req.

    Q: What records must be maintained from internal and external resume databases?

    A: The Internet Applicant rule requires contractors to maintain any and all expressions of interest through the Internet or related electronic data technologies as to which the contractor considered the individual for a particular position, except for searches of external resume data bases discussed below. Contractors also are to maintain records identifying job seekers contacted regarding their interest in a particular position. In addition, for internal resume databases, the contractor must maintain a record of each resume added to the database, a record of the date each resume was added to the database, the position for which each search of the database was made, and corresponding to each search, the substantive search criteria used and the date of the search. Also, for external resume databases, the contractor must maintain a record of the position for which each search of the database was made, and corresponding to each search, the substantive search criteria used, the date of the search, and the resumes of any job seekers who met the basic qualifications for the particular position who are considered by the contractor. These records must be maintained regardless of whether the individual qualifies as an “Internet Applicant” under 60–1.3. Note that the final rule does not specify the form of the record. The format can be as detailed as a system that automatically stores each search or as basic as a simple screen shot printed out and maintained in a file cabinet.


    Q: Are contractors required to keep the resumes of the individuals identified from a database search if they did not consider them?

    A: For searches of external databases, the answer is no. The only records a contractor would be required to maintain would be associated with the search itself. For internal databases, contractors are required to keep records of all individuals added to the databases. A resume downloaded from an external resume database into an internal resume database becomes an internal database resume.


    Q: Do contractors need to retain records of searches that do not produce any candidates with basic qualifications?

    A: No. Contractors need to maintain only those search criteria that produce job seekers to be considered further in the selection process, and they do not need to maintain records of futile search criteria.


    Q: Some contractors search large, external resume databases that for a fee will maintain, on behalf of the contractor, copies of resumes identified by the contractor as meeting the basic qualifications for a particular position. Is it possible for contractors to comply with Internet Applicant recordkeeping without having resumes maintained on their behalf by the external resume database?

    A: Contractors have several options for retaining copies of resumes identified through large external databases, without having the database company maintain copies of resumes on their behalf. For example, the contractor could: (1) use data management techniques to substantially reduce the pool of resumes meeting basic qualifications that are considered, and download the manageable number of resumes into the contractor’s internal resume database; (2) review resumes in the database to identify those meeting basic qualifications for a position and download those resumes into the contractor’s internal resume database; or (3) review resumes in the database to identify those indicating an interest in the particular position the contractor is seeking to fill and invite those job seekers to submit their own resume directly to the contractor’s internal resume database if the individual is interested in applying for the position. The contractor will need to maintain a record of all job seekers invited to apply for a position.

     
  • jobseekers vs. applicant
    Asked by Theresa C. - Mar 03, 2017
    In the webinar on 1/31/17 – Strategic Applicant Tracking and Analysis, they talked about the differences between candidates and applicants and that if they weren’t considered they don’t have to be included in the data. Slides 22-24 - The individual’s expression of interested indicated that individual possess the basic qualifications for the position. The reason code “does not meet internet application definition/Exclude from AAP”. Maybe I misunderstood, but if I ask basic qualification questions like those below and they say no, then they weren’t a candidate???? Do I need to use reason codes calling them a jobseeker vs. applicant. I'm not sure how the data would differentiate between someone I didn't consider (jobseeker) and applicant.

    Q3. Do you have at least three years' experience in a regulated industry in a Quality role? (required) A. Yes

    Q4. Do you have at least three years' experience in an ISO 13485 environment in a Quality role? (required) A. No

    Q5. Do you have at least three years' experience inspecting incoming machined parts and/or welded sub-assemblies? (required) A. No

    Q6. Do you have at least three years' experience conducting root cause analysis and corrective/preventative actions? (required) A. Yes

    Q7. Do you have at least three years' experience maintaining inspection and non-conformance records? (required) A. No

    Q8. How did you hear about this position? (For example, if through an agency, name the agency. If through a referral, name the person that referred you. If through a website or ad, name the location). (required)

    Answered by Bill Osterndorf from HR Analytical Services - Mar 03, 2017
    I didn't view this webinar, so the speaker may have provided additional information on some of these points. However, I understand your confusion about this question of who must be included in applicant data to be presented to OFCCP. There are many technical terms that are used in this context that aren't explicitly defined in the federal affirmative action regulations and that are frequently not defined by people who are talking about the selection process.

    You ask about the difference between a "candidate" and an "applicant." Neither of these terms in defined in the federal affirmative action regulations. The term that IS defined is "Internet Applicant." As your webinar most likely said, an "Internet Applicant" is a person who meets four criteria and thus must be included in statistical reports on applicant that are provided to OFCCP during a compliance review.

    Many people involved in the affirmative action field use the term "candidate" to mean "someone who has expressed interest in a position or is considered for a position, regardless of qualifications." The term "applicant" then means "someone who meets the test to be an Internet Applicant."

    A better way to understand this may be as follows: there are persons who express interest in or are considered for an opening. We're going to call these persons "candidates." A candidate may or may not meet minimum qualifications. A candidate may have expressed interest in an open job, or may have been found by a company through some kind of passive recruiting technique. A candidate may have been given some form of consideration for the job, or may have received no substantive consideration whatsoever. A candidate may be someone we could potentially hire for an open job, or someone who has no chance whatsoever of being hired.

    There is a subset of "candidates" who we're going to call "applicants." These are the people who expressed interest in a position, were given consideration, met the minimum (i.e. basic) qualifications for a job, and did not withdraw from consideration. In essence, an applicant is a viable candidate; an applicant is someone who we could potentially hire for an open job. We would technically call these persons "Internet Applicants, " though there will be occasions when certain viable candidate will not have actually applied through the Internet. (One of the fun facts associated with the Internet Applicant rule is that a candidate can be an Internet Applicant without ever having used the Internet to express interest.)

    When we disposition persons who are associated with our openings, we want to distinguish "candidates" from "applicants." That is, we want to distinguish the non-viable candidates from the viable candidates. The viable candidates need to be given an opportunity to provide demographic information on race, gender, veteran, and disability status, and must appear in the applicant reports that we present to OFCCP during a compliance review. We are not required to given the non-viable candidates an opportunity to provide demographic data (though we can do that if we choose to), and we are not initially required to show the non-viable candidates in reports presented to OFCCP (though OFCCP can ask for information on these candidates if the agency thinks we aren't providing accurate and honest information on who we consider to be viable candidates).

    You said "If I ask basic qualification questions like those below and they say no, then they weren't candidates???" Based on the definition of the word "candidate" above, persons who don't met basic qualifications are still candidates. They are not Internet Applicants, because they fail prong 3 of the test to be an Internet Applicant. They are not viable candidates who could be hired, and thus they are not "applicants" based on the definition above.

    Just to make this yet a little more complicated, you said "I'm not sure how the data would differentiate between someone I didn't consider (jobseeker) and applicant." "Jobseeker" is another term that may be used for the entire universe of persons who express interest in or are considered for a position. That is, the term "jobseeker" for these purposes is generally the same as the term "candidate." In any data, we want to differentiate between "candidates"/"jobseeker" and "applicants", because we only want to show persons who could actually be hired in the data presented to OFCCP. In your example, if a candidate/jobseeker received no consideration for an opening, that candidate/jobseeker should be excluded from data presented to OFCCP.

    In the long run, it's easier to think about this whole candidate/jobseeker/applicant/Internet Applicant thing this way: there is a big pool of persons who are associated with job openings, and a subset of those persons who are viable candidates for those openings. OFCCP typically cares about the viable candidates, and not about the remaining persons. Someone who doesn't meet minimum (basic) qualifications is not a viable candidate, just as someone who applies after a position closes and who doesn't receive any consideration is not a viable candidate.

    Why does OFCCP care about this question of who is a viable candidate (or, in their terminology, an "Internet Applicant")? It's because OFCCP is generally going to focus on viable candidates when determining if discrimination occurred.

    Hope this rather lengthy explanation is helpful, Theresa. And don't feel like you're the only person who finds this whole candidate/jobseeker/applicant/Internet Applicant thing confusing. Lots of people do.

     
  • Tracking Applicant Accommodations
    Asked by Anonymous - Feb 27, 2017
    Are federal contractors required to track/document reasonable accommodations made for applicants in order to comply with a potential OFCCP audit? If so, what is the best way to do this?
    Answered by Carla Irwin from Carla Irwin & Associates, Inc. - Feb 27, 2017
    Number 20 of the Itemized Listing does include documentation of all requested accommodations and their resolution. That would include any accommodations requested by applicants. Here is a link to the itemized listing: https://www.dol.gov/ofccp/regs/compliance/faqs/SchedulingLetter_ItemizedListing_508c.pdf.

    With regard to the best way to track and document the information, that is really dependent upon your recruiting process. In general I would suggest identifying who is responsible for taking the requests at each stage of the recruiting/hiring process and create a template/form for them to complete. Identify a centralized depository and review the documentation on a regular basis.

     
  • Candidates from a staffing agency
    Asked by Anonymous - Feb 17, 2017
    If we utilize a staffing agency to assist us in sourcing for candidates, are those candidates also required to apply to the position posted on our site? If not, how do we capture the applicant information?
    Answered by Bill Osterndorf from HR Analytical Services - Feb 28, 2017
    If the staffing agency is sourcing candidates for positions that are part of your regular workforce, you need to collect applicant information from those candidates, including demographic information for all candidates who are "Internet applicants." ("Internet applicants" are basically those applicants who are viable candidates for the positions in which they express interest.)

    If you have a rule that in order to receive additional consideration, a candidate must express interest via your website, then the candidates referred by the staffing agency must be told that they are required to express interest using your website. Should they fail to do so, they should not receive further consideration from your company. If you have already received a resume or other information from the candidate, you should retain the resume and other information, but you should NOT give the candidate further consideration.

    You are allowed to establish a rule that says "Candidates referred by a staffing agency are not required to express interest through our website." I cannot recommend that you establish such a rule, as you will find that your lives will be much simpler during an OFCCP compliance review if you have a uniform manner for candidates to express interest. However, there is nothing to prevent you from allowing a certain class of candidates to express interest in an alternate manner. In this situation, you will need to find a way enter the same data you commonly collect from candidates who apply via your website from candidates referred by the staffing agency. The most likely scenario here would be that someone would be required to do data entry into your system from resumes and other documents you receive. Please note that you will absolutely be required to make an effort to collect demographic data from any viable candidates who were referred by the staffing agency. Please also note that you will be required to retain resumes and other information collected from all candidates referred by the staffing agency, even if they are not viable candidates.

    If you are using a staffing to source candidates for temporary positions where the candidates are hired by the staffing agency and remain part of the staffing agency's workforce until such a time as they are converted to your regular workforce, the situation is much different. OFCCP has generally approached candidates who are considered for temporary positions on an agency's payroll as candidates (and then employees) of the staffing agency rather than candidates (and then employees) of the federal contractor or subcontractor. Temporaries typically becomes the candidates of the contractor or subcontractor only when they are considered for positions on the contractor or subcontractor's regular workforce. Please note that there are a variety of co-employment issues that exist here, and it is not impossible that OFCCP would suggest that candidates for temporary positions are candidates of both the federal contractor and the staffing agency depending on how the hiring is handled.

    The best approach is to make all candidates who will be considered for positions on your payroll apply through the same method (which for you would be through your website) regardless of how they were sourced, and to avoid having candidates who will be considered for temporary positions on an agency's payroll apply directly to your company.

     
  • Sourcing for potential positions
    Asked by Anonymous - Feb 17, 2017
    We have won a contract that will have task orders issued in different regions across the US and we would like to build a pipeline of candidates for the possible positions coming in the future. Many of these positions are in states and/or US territories that we currently don't have work in. There are a total of 300 possible openings. Are we able to post one job per job title and state that we are accepting applications and that the work could be in multiple states (listing out the states) or do we need to do an opening per job per location? We are unable to register with the ESDS in many of the states because we do not have any current work there.
    Answered by Bill Osterndorf from HR Analytical Services - Feb 28, 2017
    Here's the relevant language from the federal regulations:

    41 CFR 60-300.5(a)
    2. The contractor agrees to immediately list all employment openings which exist at the time of the execution of this contract and those which occur during the performance of this contract...with the appropriate employment service delivery system where the opening occurs....In order to satisfy the listing 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.
    3. Listing of employment openings with the appropriate employment service delivery system pursuant to this clause shall be made at least concurrently with the use of any other recruitment source or effort and shall involve the normal obligations which attach to the placing of a bona fide job order...

    Here's your problem: this language is unhelpful to your situation. It doesn't tell us whether you need to list one job per job title, nor does it tell us what to do when the states refuse your job posting. It doesn't tell us whether you can list with one state when work may occur in multiple states. And it doesn't tell us what the rules are when an organization is creating a pipeline for future openings rather than recruiting candidates for current openings.

    One important part of the language is that "contractors must provide information about the job vacancy in any manner and format permitted" by the ESDS in order to allow the "priority referral of veterans". The second part of this sentence is absolutely critical. The job listing requirement in the regulations is a mechanism to ensure there is priority referral of veterans. Thus, whatever is done to ensure that priority referral occurs is going to help meet the requirements in the veterans regulations.

    The first part of that language about providing information in any manner and format permitted by the ESDS has become a problem for many federal contractors and subcontractors. The issue you have run into with the states requiring a physical presence in the state is a common one. OFCCP seems to have recognized this, and when this situation occurs, OFCCP allows organizations to list positions in the state where they have their headquarters, or in a nearby state where they have significant operations, or in a state where the HR representatives involved in recruiting and selection are based. There is no specific written guidance OFCCP has provided in this regard, and thus any particular compliance officer may have his or her own ideas about this. However, OFCCP generally will give organizations some leeway if an effort is made to meet the veteran preference requirement.

    The language about "manner and format" is also a problem in regard to your question about posting one job per state where you will be hiring multiple candidates. OFCCP seems to allow organizations to hire multiple candidates from one applicant pool so long as all hires are for the same job title and that the qualifications for that one job title are applied uniformly. (Thus, OFCCP would not be troubled if you hired 30 assemblers from one pool, so long as the job qualifications were always the same. Conversely, OFCCP would likely ask many questions if you hired 30 assemblers, 15 welders, 10 grinders, and 10 mechanics from the same applicant pool.) Whether a particular state would allow you to indicate you are hiring multiple persons into one job and that these persons may be working in a variety of locations is something that is up to the state. The relevant ESDS will determine the manner and format of job listings, including whether listings must be for single positions or whether they can be for multiple openings in multiple locations.

    All of this means there is not a simple answer here. The starting point is this:

    -Work closely with the ESDS office where your headquarters is, and/or work closely with the ESDS offices where your HR staff involved in the recruitment process are based.
    -Avoid job postings for generic openings (i.e. "production" or "general" or "factor" or "construction").
    -Ensure that job postings with the ESDS are made at least contemporaneously with any other type of advertising. -Finally, whatever you do, make a commitment to ensuring that the veteran preference through the ESDS is somehow carried out.

     
  • reference checking before an offer
    Asked by Julie M. - Feb 17, 2017
    I understand background and drug tests should not take place prior to the offer. What about reference checks?
    Answered by Bill Osterndorf from HR Analytical Services - Feb 28, 2017
    You are allowed to do reference checks at whatever point in the selection process it makes sense to do reference checks. There is no OFCCP-related rule that dictates when reference checks must occur. OFCCP may be concerned if it finds that you are doing reference checks at a different stage in the selection process for members of a certain classification (i.e. you do reference checks for African Americans earlier than reference checks for whites), but so long as you do the reference check in a logical and uniform uniform way, OFCCP would suggest you have wide latitude on when and how to do the reference check.

     
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