OFCCP Ask the Experts
OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS
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  • Blocking Candidates
    Asked by Anonymous - Mar 29, 2017
    I am wondering about the legality of blocking candidates on Wisconsin Diversity. I know there is a feature in which we can select that a potential applicant is "blocked" so that they do not see the postings for our company without going directly to our company website. Is this legal?

    We are thinking of using this only when an individual has been proven to be someone we would not hire based on our company culture. For example, we had a candidate who has applied several times and has since lied and adjusted the uploaded resume to fit what we have mentioned we are looking for. Our company's "compass" does not allow for this kind of dishonest behavior and we would not consider this candidate in the future.

    Please advise whether or not blocking a candidate is legally sound.

    Thanks!
    Answered by Bill Osterndorf from HR Analytical Services - Apr 05, 2017
    We'll start with the infamous "I'm not a lawyer, and can't offer specific advice on whether something is legally sound."

    With that out of the way, let's explore your question. You asked if you can block specific candidates from expressing interest in positions. The general answer to this question is "Yes, so long as you do so in a non-discriminatory manner." Organizations block specific candidates or specific types of candidates routinely, and agencies such as EEOC or OFCCP will accept this approach so long as the candidates are not blocked for an impermissible reason.

    One of the standard ways in which organizations block candidates is to ask qualifying questions that are tied to a position's minimum (or in OFCCP parlance "basic") qualifications. For example, if an organization is seeking a mechanical engineer, and that position requires a four-year bachelor's degree in mechanical engineering, a legitimate question for all candidates would be "Do you have a four-year bachelor's degree in mechanical engineer?" Candidates who indicate "no" would be blocked from proceeding further.

    Another question an organization could ask would be "Have you ever lied when completing an application form?" Anyone who answers "yes" could be appropriately disqualified and could be prevented from moving forward in the selection process.

    In your situation, you are seeking to block certain specific candidates. One example you cite is the situation where an individual lied on his or her resume. This situation seems to be equivalent to the situation in which you ask a pre-screening question about whether a candidate has lied when completing an application form. You would be disqualifying the candidate for a legitimate, non-discriminatory business reason.

    Another way to think of this situation is as follows: organizations are not required to give additional consideration to candidates who could not be hired for an open position (unless the reason the candidate could not be hired is a discriminatory reason). As an example here, if an organization indicates that two years of experience are required for a position and a candidate does not have the two years of experience, the candidate could not be hired for the open position (or, at least, the candidate should not be hired) and the candidates should receive no further consideration. The using of an early screening technique to limit consideration of candidates to the subset of candidates who could be hired is typically going to be considered acceptable by EEOC and OFCCP.

    The one major issue your specific question raises involves the sentence "We are thinking of using this only when an individual has been proven to be someone we would not hire based on our company culture." We have found that "company culture" can encompass many different attributes, some of which prove problematic to agencies like EEOC and OFCCP. A company culture that prohibits dishonesty on application forms is something that most of us would agree is a positive trait. A company culture that seeks to replicate the demographics and attitudes of the company is something that OFCCP, EEOC, and others would potentially find unacceptable.

    In closing, then, there is a simple answer to your question about preventing candidates who have previously lied to your organization from expressing interest in future positions. EEOC and OFCCP would likely find this practice to be acceptable. However, a general lack of fit with your "company culture" would be found problematic by EEOC and OFCCP unless you can demonstrate that there are specific job-related, non-discriminatory traits associated with your company culture that are being incorporated into the screening and selection process.

    If you'd like to discuss this issue further, you may e-mail me directly.

     
  • EEO Tagline Job Posting Requirements for Third Parties
    Asked by Anonymous - Mar 16, 2017
    Is the EEO Tagline required for a job advertisement that is trying to hire "Contractors" only? If so, does the staffing firm say something along the lines as "Our client is an EO/AA...." or can we simply put something along the lines as "Qualified applicants will receive consideration for employment without regard to race, color, religion, sex, national origin, sexual orientation, gender identity, disability or protected veteran status"? Also, should we as the Federal Contractor be posting our Temp Positions on behalf of these Third-Party staffing firms or should the accountability be on their part?" These positions can be short or long-term contracts and if we were to consider a temp to hire scenario then the position would be posted on our career site, which would include the EEO tagline in the actual job advertisement.
    Answered by Roselle Rogers from Local JobNetwork™ - Mar 20, 2017
    Federal contractors are required under Executive Order 11246, Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA), Section 503, and Executive Order 13672 final rules to state in all solicitations or advertisements for employees that all qualified applicants will receive consideration without regard to their status as a member of a protected group. Technically speaking, your obligations apply to positions that are in your payroll. If the contractor is going to be in the staffing agency’s payroll, then the EEO tagline needs to be included in their job advertisements.

    Because it is providing employees to work on your federal contract and these employees are on their payroll, your staffing agency may be considered by OFCCP as a subcontractor. The laws that OFCCP enforces apply to both federal contractors and subcontractors. As such, the EEO tagline that the subcontractor should be using will be no different than that of a prime contractor.

    You are also encouraged to examine your relationship with your staffing agency employees to make sure that a joint employment situation does not exist. On January 20, 2016, the DOL’s Wage and Hour Division issued its interpretation of joint employment under the Fair Labor Standards Act. Depending on factors such as who directs, controls, or supervises the work, and who has the power to hire or terminate the employee, determine work conditions and rate/method of pay, you and the staffing agency may both be considered employers of the contractor, and OFCCP may hold you responsible for compliance, regardless of whether the individual is on your payroll or not.

     
  • Coordinating a Facility Tour for State Employment/Career Services Professionals
    Asked by Lisa L. - Mar 15, 2017
    We want to plan a facility tour for state employment and career services professionals to help them understand the roles and the working environment at one of our locations. We've never hosted a facility tour before - is there a standard agenda to follow? How much time should we allow? Our initial thoughts include:
    - Welcome and brief business overview by a business leader
    - Overview of hiring by a HR BUsiness Partner or Recruiter (a summary of the most hired roles along with their qualifications)
    - Facility Tour
    - Q&A

    Any and all guidance on hosting these tours is greatly appreciated. We're eager to understand the do's and don't's of these events.
    Thank you!
    Answered by Roselle Rogers from Local JobNetwork™ - Mar 20, 2017
    This is a great idea and a good way to get to know and build a relationship with your local state employment services personnel. This will also help them provide you with better qualified candidates based on the higher level of understanding they will have of your jobs, the job tasks, and what is required. There is no one prescribed way for conducting these, but I would include in the facility tour a chance for them to shadow one or two of the jobs that you are looking to fill.

    There are also many local resources who can assist you in organizing this facility tour. These include the U.S. Business Leadership Network, the Employer Assistance and Resource Network on Disability Inclusion (EARN), and your Local Veteran Employment Representative (LVER). I would encourage you to collaborate with them to put together a successful event that both parties can get the most out of.

     
  • Outreach Efforts
    Asked by Carrie G. - Mar 08, 2017
    At my employer, we have internal diversity networks for Veteran's, Individuals with Disabilities, Females, and minorities. The purpose of these networks is to encourage and support diversity and inclusion for associates that are already employed. From time to time, these networks will participate in public/external events as a way to show support to that community. Would this count as an "outreach" activity for purposes of meeting our obligation or does outreach need to be more recruiting focused? As a Federal Contractor, we are required to show the effectiveness of our efforts and since the external event is not recruiting focused and doesn't yield any applicants, I would think that it doesn't count but wanted to hear from the experts on this please. Thank you!
    Answered by Roselle Rogers from Local JobNetwork™ - Mar 20, 2017
    The obligation to conduct outreach efforts is a component of a contractor’s affirmative action program. The regulations intend for it to help with achieving a contractor’s hiring benchmark for veterans, its utilization goal for individuals with disabilities (IWD), and its placement goals for minorities and women. Therefore, the expectation is for outreach to be undertaken with the goal of recruiting and hiring from these demographic groups. Is information on careers and open jobs at your company being disseminated at these outreach activities? Are you finding these activities effective in yielding applicant referrals and hires? OFCCP requires contractors to evaluate their outreach efforts annually and if you find that these are not bringing in any results, then OFCCP expects you to identify alternative outreach activities.

    For some ideas on outreach activities, you can find a list of examples in §60-300.44 (f)(1) Required Outreach Efforts in the VEVRAA rule. Suggested activities for reaching out to IWDs can also be found in §60-741.44 (f)(1) Required Outreach Efforts in the Section 503 rule.

     
  • 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.

     
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