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OFCCP: Ask the Experts
OFCCP Ask the Experts
OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS
Ask the Experts is an online forum where federal contractors and subcontractors are invited to submit questions to industry experts related to OFCCP compliance, affirmative action planning, and equal employment opportunity. Simply register your company on LocalJobNetwork.com to submit a question.
The obligation requiring federal contractors to record resume database searches is stated under OFCCP’s Internet Applicant Recordkeeping Rule. In 41 C.F.R. § 60-1.3 OFCCP defines who is an Internet Applicant and in 41 C.F.R. 60-1.12 it sets forth the record retention requirements for federal contractors.
Federal contractors must save records when they search a resume database, whether it is an internal or external database. For internal resume database searches, you will need to keep a record of the following:
• A record of each resume added to the database • A record of the date each resume was added to the database • A record of the position for which each search of the database was made • The date of the search for each search conducted • The substantive search criteria for each search conducted – such as experience, degree, location, industry, and key words used
When searching for candidates on an external resume database, you will need to maintain the following records:
• A record of the position for which each search of the database was made • The date of the search for each search conducted • The substantive search criteria for each search conducted – such as experience, degree, location, industry, and key words used • The resumes of job seekers who met the basic qualifications for the particular position who you considered for the position. You are not required to maintain the resumes of individuals if you did not consider them for the position. You are also not required to maintain a record of searches that do not produce candidates that meet the basic qualifications. • While the OFCCP does not specifically require this, it would be beneficial for you to document any data management techniques you used. For example, your company may have a policy of only reviewing the first 50 resumes.
If your company has fewer than 150 employees or does not have a federal contract of at least $150,000, you should retain these records for one year. If you have at least 150 employees and a contract of $150,000 or more, you are required to maintain the records for a period of two years.
However, any records pertaining to outreach to veterans and individuals with disabilities will need to be kept for a period of three years.
As far as interviewing and selection, contractors are required to keep a record of any tests, test results, and interview notes. While there is no OFCCP requirement for contractors to use disposition codes, it is in the contractor’s best interest to use strategic disposition codes that record all of the following:
• The stage in the selection process when the candidate was removed from consideration for the position • The reason for removing the candidate from consideration • The person who made the decision to remove the candidate from consideration
If you are using a staffing agency and these positions will end up on your payroll, you need to make sure that the staffing agency is recording and retaining this data on your behalf; because ultimately, it is your responsibility as the contractor to provide proof of compliance. OFCCP has made it clear that the use of a staffing agency does not excuse a contractor of its obligations and that the contractor will be held accountable if records are not being kept.
I have several ads posted but there are no open positions. Should the wording in the ad be changed to say accepting applications instead of stating we have an opening? We are not a government contracted employer.
If your company does not currently have open positions, it would be best to phrase the ad differently so applicants do not feel they are being misled. Stating that you are “accepting applications” is an alternative, although some applicants may still be disappointed to learn that they were applying for a position that was not open.
If you have positions that are difficult to fill and you want to create a pool of qualified candidates for when the position opens, it is perfectly fine to post/search for the position.
You may want to read my article titled "You've Found the Perfect Candidate But You Don't Have An Opening - What Should You Do?" It was written for government contractors but it may be helpful to read.
Asked by Anonymous - Jun 16, 2016
Is it permissible to ask during phone screening if a candidate is a military veteran and allowing them to answer (yes, no or do not wish to disclose)? Our purpose would be to assist in our veteran outreach. Thanks-
I don't believe the regulations or guidance from OFCCP directly address this question, but I don't recommend this method. First, this won't provide you with the information you need to collect as a federal contractor. There are distinct categories of Veterans that are considered "protected," and a general question would not elicit a useful response. Second, the demographic questions should be asked in a manner that provides confidentiality in the responses, and a verbal question detracts from the confidential process. Third, the candidate might not understand that the question is separate from the evaluation of their credentials. Finally, candidates might not feel as free to respond that they do not wish to disclose if they are asked verbally.
Demographic information should be requested at the time the candidate expresses interest in an open position on-line. To evaluate the effectiveness of a federal contractor's outreach, ask candidates to disclose how they learned about the position.
2016 Sex Discrimination Guidlines
Asked by Terry S. - Jun 14, 2016
I was reading that the OFCCP has issued its final ruling on Sex Discrimination which will become effective in August of 2016. We currently have 3 separate AAP's for Veterans, combined Women and Minorities and for Individuals with Disabilities. How should the new regulation be accounted for in our AAP, is it necessary to create a new, separate, plan to deal with the all the requirements of the new guidelines.
Answered by Amy Wozniak from Local JobNetwork™ - Jun 16, 2016
The OFCCP addresses issues of sex discrimination, including discrimination based on gender identity and sexual orientation, within AAPs that are developed for women and minorities. Therefore, it is not necessary to create a new or separate plan to address the requirements of the final ruling regarding sex discrimination. The OFCCP will apply the details of the final ruling to your current plan.
Background checks - is it legal to ask for before offer letter is sent?
Asked by Donna R. - Jun 10, 2016
We just started a new process to streamline efforts - once the program manager (hiring manager) selects a candidate,
1- he sends "request for offer" letter to HR 2- I (the recruiter) send this email to the candidate:
Dear ____, my name is Donna R. and I am the Recruiting Manager at Skyline. Mr. _______advised us (HR DEPT) of the position he has offered you at Schofield Barracks. Welcome!!! In order to start your new hire in-processing, we need to conduct a preliminary background check. Attached is the Pre-employment release form allowing us to submit your information to a national background information agency. This form must be signed, and then faxed to 571-577-9472. Once we have your application and back ground information, our HR Specialist, ___________, will send your offer letter and instructions for completing new hire paperwork.
Answered by Amy Wozniak from Local JobNetwork™ - Jun 15, 2016
Employers must comply with both Federal and State laws that protect applicants from discrimination. Whether or not you can initiate a background check prior to a job offer, will depend on the state you are located in and the types of questions that are asked in the background check. For example, an employer in Hawaii may inquire about convictions only after making a conditional offer of employment.
Additionally, when an employer receives a background check report from a company in the business of compiling background information, they must also comply with the Fair Credit Reporting Act (FCRA).
For more information, the EEOC has a publication on “Background Checks What Employers Need to Know”: To read the publication, click here.
How best to represent current efforts
Asked by Jeff A. - May 25, 2016
GTI Federal has been requested by OFCCP to submit our current outreach efforts to Veteran's/ Disabled individuals/State agencies. What report or display can I use to best show what is happening on LJN? I am a new LJN client and just completed the webinar this AM. Thank you.
We are very pleased to have you using our services. First of all, please know that LJN customers using our OFCCP Compliance Solutions have access to our compliance audit support services to assist you in compiling reports that are required in a compliance review.
Federal contractors using our services have access to on-demand reporting 24/7 through our website. At any time, you can access and generate the following compliance reports to demonstrate compliance with OFCCP regulations.
The ESDS (State Job Bank) Cross-Post report demonstrates your compliance with the mandatory job listing requirement under VEVRAA and contains data on your employment openings, the date they were listed on the appropriate state Employment Service Delivery System (ESDS) where your jobs are located, a screen shot of the job as it was posted on the ESDS, and the reference number assigned by the ESDS.
The Community and Diversity Outreach – Detail report documents your outreach to organizations that provide services to veterans and individuals with disabilities. This includes a listing of your jobs, the type of organizations your positions were sent to, copies of the emails sent, the dates they were sent, as well as the name and email address of the person who received the emails.
The Outreach Management Activity report pulls information from our Outreach Management System (OMS). This report shows documentation of notes that have been recorded using the system along with email messages that have been sent to any organization. The report contains the date and time that the interaction or communication took place, the name and contact information of the person at the organization, as well as detailed information on what type of action took place, a record of the subject matter, and the content of those emails or interactions. This is a great way to showcase your efforts towards building relationships with different organizations.
Our system also provides you the ability to enter and track the candidates that have been referred to you by outreach organizations. The Outreach Referral Activity report captures this information and shows candidates that were referred, the position they were referred to, the name of the outreach organization, the contact person at that organization, and their contact information. It will also show the name of the recruiter or individual who entered the referral and the date the referral was added.
All of these reports can be exported to Excel, CSV, or sent via email.
You will find all of these reports very helpful in proving compliance and providing documentation of compliance during an audit.
We encourage you to reach out to your Account Executive who would be more than happy to walk through the various reporting options available to you in your account.
This forum provides information of a general nature. None of the answers or information provided is intended as legal advice or opinion relative to specific matters, facts, situations, or issues. Additional facts and information or future developments may affect the subjects addressed. You should consult with an attorney about your specific circumstance before acting on any of this information since it may not be applicable to your situation. The Local JobNetwork™ and all experts expressly disclaim all liability with respect to actions taken or not taken based on any or all of the contents of this forum.