WELCOME

Welcome to OutSolve's Recruiter Affirmative Action Compliance Q&A page. The questions below are from OutSolve's recruiter compliance webinars where over 400 HR professionals were in attendance. Our OutSolve experts, Beth Montgomery and Carolyn Bensel provided the answers below. For more questions about the recruiter's role in affirmative action compliance, please contact us at 888.414.2410 or info@outsolve.com.  

• If there are a specific number of applicants who applied electronically and you do not review their application, are you required to add them to your applicant flow chart?

  If you never reviewed the application, never considered it in any way, you are not required to add them to your applicant flow chart for purposes of analysis. Under the OFCCP's Internet Applicant Definition, the individual did not meet the 2nd criteria "contractor considers".  You will want to make sure to disposition these individuals to tell the tale of why they were not selected, such as "application not reviewed".  In addition, you are still required to follow record retention guidelines for these individuals, regardless of if they are on your applicant flow chart or not.

• If an applicant does not meet the basic qualifications, do they still need to be included in your applicant flow log?

  If an individual does not meet the basic qualifications, you are not required to include them in your applicant flow chart for purposes of analysis.  Under the OFCCP's Internet Applicant Definition, the individual did not meet the 3rd criteria "possessed basic objective qualifications".  You will want to make sure to disposition these individuals to tell the tale of why they were not selected, such as "Does not meet basic qualification".  We do recommend keeping a record of these individuals for three years, as we have seen the OFCCP ask for this documentation during audits, to determine if the individual truly did not meet the basic qualifications.

• Do we still need to post a job, even if it’s a new role and a candidate has been identified?

  You are not required to post positions internally, but it is a best practice to show your current employees your commitment to equal employment opportunity.  You are required to list all external positions with the state ESDS, unless it is an executive/senior-level management position, filled internally, or a job lasting 3 days or less.

• How does the OFCCP determine who is getting audited?

  For years, the OFCCP's method for selecting contractors for the audit has been hazy. In February 2018, the OFCCP released Directive 2018-01 Predetermination Notices to make it easier for contractors to understand and address OFCCP Audit Concerns.  Please refer to the link: https://www.dol.gov/agencies/ofccp/directives/2018-01

• How can ombudsman help a contractor? What is the percentage of cases the ombuds becomes involved with?

  The mission of the Ombuds Service is to offer an impartial and independent perspective to conflicts between external stakeholders and OFCCP, providing a neutral and, to the extent permitted by law, confidential resource while advocating for fair, efficient, and transparent policies and procedures. To achieve this mission, the ombudsman may offer any or all of the following services: a) Informal one-on-one conversations and/or listening sessions; b) Neutral conflict coaching sessions; c)Facilitated dialogue via shuttle diplomacy between OFCCP district and/or regional staff and stakeholders; d)Conciliation and negotiation discussions, conducted neutrally with a focus on preparing parties to effectively communicate; e)Mediation to resolve issues which persist, despite other preliminary attempts at resolution; and f) Large group facilitation, conflict resolution training and education for agency stakeholders and OFCCP staff.  For more information, please visit https://www.dol.gov/agencies/ofccp/ombuds/service-protocol

• Please explain what a protected veteran is?

  Under VEVRAA, a veteran may be classified as a ''disabled veteran,'' ''recently separated veteran,'' ''active duty wartime or campaign badge veteran,'' or ''Armed Forces service medal veteran. The OFCCP provides an infographic designed to navigate the "protected veterans" categories.  See link: https://www.dol.gov/sites/dolgov/files/ofccp/posters/Infographics/files/ProtectedVet-2016-11x17_ENGESQA508c.pdf

• How has the coronavirus impacted AAP and potential audits?

  The OFCCP is continuing operations during the COVID-19 pandemic. It is continuing its compliance reviews, focused reviews and complaint investigations, but in lieu of physical on-site visits, the OFCCP may use alternative resources to conduct an interview and complete evaluations.  The OFCCP is remaining flexible and providing reasonable extensions if needed.  The OFCCP also recently granted a 3-month National Interest Exemption for contracts providing COVID-19 relief.

• What does the OFCCP think about screening questions to eliminate applicants that do not meet requirements?

  We don't know exactly what the OFCCP thinks, but we do recommend, as a best practice, to use consistent screening questions to determine if an individual "job seeker" is an applicant, under the OFCCP's definition.

• Do you recommend making notations for candidates in the requisition?

  There are many best practices pertaining to dispositioning and the creation/retention of documentation supporting the dispositioning of job seekers.  We advise that you check with Legal Counsel for guidance pertaining to notations and documentation as part of your selection process.

• What if a company is outsourcing a position to your company? What are the posting requirements (ESDS)?

  Ultimately, the responsibility to list external jobs with the state ESDS lies with the contractor.  If you are an outside job search company, we suggest discussing this requirement with the contractor, to make sure there is no misunderstanding about who is taking on this responsibility.

• If we win a contract and hire the incumbent, do we have to advertise the position?

  If it is written into the contract that you will acquire the incumbent employee, then we would say "no".  But, if you are going through a selection process and posting the job externally as well, then we would say "yes".  You will need to list the job with the state ESDS, unless it meets one of the 3 exemptions.

  .

• Was there a change in recruitment records retention from 2 years to 3 years, as you stated in this training?

  Yes, record keeping requirements changed in 2014 with the updated regulations pertaining to VEVRAA and Section 503 of the Rehabilitation Act of 1973.  Technically, the changes to the record-retention guidelines only impacted records pertaining to individuals with a disability and Protected Veterans (and not for minorities and females covered under Executive Order 11246).  However, it is a suggested best practice to apply the three-year record retention rule across all groups covered under your affirmative action plan for ease of consistent practices.

• Can individuals who are receiving intermittent or continuous leaves, or who have requested a modification of work duties or equipment without formally self-identifying as having a "disability" be counted as part of your disabled population?

  As a best practice, it's recommended that only Self-Identification be used, when determining your population of Individuals with Disabilities.  As a reminder, contractors are required to invite employees to Self-ID as an Individual with a Disability every 5 years, and also to remind employees at least once during that 5 year period that they can voluntarily update their status.

• Should employment records be retained for 3 years or until your audit is closed? Because some of them may be much longer.

  You are correct.  We recommend retaining all employment-related records for 3 years, but if you are under audit by the OFCCP, "you are required to maintain all personnel and employment records described in the regulations enforced by OFCCP until the final disposition of the evaluation."

• Where can we access the previous webinar on data management techniques?

  A recorded version of our previous webinar, Affirmative Action Recruiter Compliance Best Practices: Part I can be accessed on our website here. Part I focused on the Recruiters' Role in Outreach.  Data Management Techniques were covered in that webinar, as well.

• How do you disposition a group of applicants if partway through the recruiting process the position is canceled? Do I need to go back and update all dispositions prior to the position being canceled?

  The best practice is always to disposition as you go. If the requisition is canceled mid-stream, disposition any future job seekers with "position canceled" or something similar to tell the tale of why these individuals were rejected.  Because there was no selection made for this requisition, there is no potential for any disparate impact.

• When a position gets placed on hold, should you disposition all candidates at that time, and then re-open a new req. once we re-open or continue on by opening the req. that was placed on hold and any new candidates who may apply after?

  We recommend dispositioning all job seekers prior to putting the requisition on hold. Disposition as you go. When the position is reopened, create a new requisition, and rather than moving the applicants to the new requisition, ask them to reapply; this way you will not inflate your applicant pool.

• Is it the same for sub-contractors?

  Yes, these regulations apply to all sub-contractors who meet the jurisdictional thresholds.

• Is it acceptable to move a candidate from an evergreen requisition to a new requisition to hire without waiting for a specific posting period for the new requisition?

  Candidates should never be moved from one hiring requisition to another, rather they should be asked to apply to each separately. 

• What happens if the applicant only passes 3 of the 4 bullet points of the Definition of an Applicant?

  Under the OFCCP's Definition of an Internet Applicant, an individual must meet all 4 criteria to be considered an applicant and to be included in your analysis.  If an individual does not meet the 4th prong of the definition, they have withdrawn prior to receiving an offer, they are not considered an applicant and do not need to be included in your analysis.  As a reminder, make sure the disposition reason tells the tale of why the individual was rejected.

• How about employees hired through a staffing agency? Are they to be counted?

  Yes, as a contractor you are required to retain all employment-related records for 3 years. If you hire an employee through a staffing or temp agency, you are still ultimately responsible for retaining all employment and applicant records.  We suggest discussing these requirements with your staffing agency and making it a condition of doing business with them.

• Is there a compliance audit checklist?

  Yes, OutSolve provides our clients with a Regulatory Checklist which can be accessed here.

• We've been told that we do not need to maintain interviewer notes. However, you have indicated in this presentation that if we are audited, these notes could be requested. What's the bottom line on this issue?

  Retention of interview notes is required and addressed in §60-1.12; §60-300.80 & §60-741.80.  “Federal contractors are required to maintain for a period of two years from the making of the personnel action, all job postings an advertisements, applications received, any interview notes, test and test results, records of job offers, and the applications themselves.  Contractors with fewer than 150 employees or a contract of less than $150,000 need only keep these records for a period of one year.”  However, it is a best practice to retain the above documentation for a period of three years, due to the differing record retention requirements for your outreach efforts and data collection as found under  §60-741.44(f)(4) and (k); and §60-300.44(f)(4), 60-300.44(k) and 60-300.45(c).

• What does "considers" mean in regard to “Gate 2” when defining the applicant pool?

  “Gate 2” of the 4-pronged definition of an applicant reads: The contractor considers the individual for employment in a particular position. According to the OFCCPs FAQs:  What is the definition of "considers the individual for employment in a particular position," for purposes of the definition of "Internet Applicant"?  The definition of "considers the individual for employment in a particular position" for purposes of paragraph 60‐1.3 (1)(ii) of this definition means that the contractor assesses the substantive information provided in the expression of interest with respect to any qualifications involved with a particular position.  A contractor may establish a protocol under which it refrains from considering expressions of interest that are not submitted in accordance with standard procedures the contractor establishes.  Likewise, a contractor may establish a protocol under which it refrains from considering expressions of interest, such as unsolicited resumes, that are not submitted with respect to a particular position. If there are a large number of expressions of interest, the contractor does not "consider the individual for employment in a particular position" by using data management techniques that do not depend on the assessment of qualifications, such as random sampling or absolute numerical limits, to reduce the number of expressions of interest to be considered, provided that the sample is appropriate in terms of the pool of those submitting expressions of interest.

• What is your best practice for hiring managers that skip the dispositioning step?

  Many recruiters spend large amounts of non-productive time chasing hiring managers for disposition information.  It is either vague once received, or is “stale,” and many times reliant upon their memory of a review that occurred many weeks to months prior.  My advice is multi-pronged: 1) Provide annual training to hiring managers on the necessity of providing disposition information in a timely manner.  Many times, they simply are unaware of the necessity of this information and the costly impact it could have on their company if it is not provided.  Annual training should include an understanding of disposition reasons the recruiters have available and that the hiring managers' feedback must substantiate the disposition reason selected.  It is also helpful to provide examples where EEOC or OFCCP reviews have resulted in the contractor paying large sums of money to applicants or employees simply due to a lack of record-keeping. 2) Change the culture so that it is the expectation and requirement that hiring managers provide this information in a timely manner.  This could be accompanied by an escalation process whereby if recruiters are not receiving the information timely (and “timely” should be defined for the hiring managers), or if the information is insufficient, this information is escalated to higher levels of management.  3) After the above has occurred, continue to audit the response time and content.  This will allow you to identify where further issues are occurring so they can be addressed one-on-one.

• If I've made a written offer to an applicant but they have not accepted the offer yet, and I keep receiving new resumes but don't review them, does that mean I'm not considering them for the position and I don't have to include them?

  You would need to include them, and disposition them accordingly; whether they are included in your analyses is based upon the disposition reason used.  If you have the option of “Never reviewed or considered, given volume”, then this would be a valid disposition reason to utilize however these individuals would not be included in your analysis due to not meeting the criteria of the Internet Applicant Rule.

• What if the person has accepted another position within the company?

  Each instance of the application should include a disposition reason specific to that particular requisition.  If the person accepts another position within the company, they will still need to be dispositioned for the original position. Whether this person is included in the analysis for the original position for purposes of your AAP will depend on the final disposition used.  You would also need to verify that the other position they applied for/was accepted within the company is also listed in your reports.

• Do we need to consider an applicant that meets the minimum requirements but has stated a salary that is higher than our salary range?

  Per OFCCP FAQs: “A contractor may also presume a lack of continuing interest based on a review of the job seeker’s expression of interest. For example, statements pertaining to (1) the individual’s interest in the specific position or type of position at issue, (2) the location of work, or (3) his or her salary requirements, may provide the basis for determining the individual is no longer interested in the position, provided that the contractor has a uniformly and consistently applied policy or procedure of not considering similarly situated job seekers.” 

  Please note there are specific state laws forbidding employers from requesting desired salary requirements.  Please be certain that you are not in violation of any state-specific law.

• Are disposition codes 'enough' to satisfy the OFCCP in terms of selection/non-selection reasons, or do you see companies providing summaries of their hires, and why they picked one applicant over other applicants? What about saving evaluation documents for each search to substantiate the hire...needed or not?

  The expectation is that the disposition reason used can be substantiated by the information contained on the application/resume, job posting and job description and through any additional information obtained and documented either through telescreen or interviews, including evaluation documents.  It is a best practice to utilize a standard set of interview questions (can vary based on the title) to ensure that there is consistency in interview questions.

• Is OFCCP including data from artificial intelligence in their audits?

  The OFCCP is interested in any tool utilized as a part of the selection process, including AI. If the OFCCP discovers that the use of an AI-based selection procedure is having an adverse impact, the federal contractor would be required to validate the selection procedure using an appropriate validation strategy.

• If you use social media to evaluate one candidate, wouldn't you have to use it on all of them to present a fair & consistent consideration? And to follow up to that question, if not all the candidates have an online profile, how does one account for that when used for one & not others?

  Yes, that would be the expectation, in order to consider everyone consistently.

  There would be nothing to evaluate and you would need to notate as such.  We list in our Best Practices to utilize a standardized form when conducting the social media search.  When using this type of form, you would just simply indicate on that form that there was no online profile when one didn’t exist.

• If we hire someone that shares with recruiting they prefer not to work certain days due to religious beliefs but they tell the hiring manager in the interview they can be flexible with their schedule. How should we proceed with their schedule or a follow-up conversation?

  What is the expectation of the position in terms of days available to work?  Did the recruiter specifically share this information with the applicant?  Did the hiring manager specifically share this information with the applicant? Since there appears to be a conflicting response from the (now) employee, you would need to clarify the response with the employee.  If the employee states they cannot work certain days due to religious beliefs, the issue then becomes one of the abilities of the employer to offer a reasonable accommodation. We would suggest that you discuss this with legal counsel for further guidance.

• What is your opinion on hiring managers that require a degree for qualifications? And sometimes it isn't a degree that is related ex: interior design degree for a GPS engineer.

  Required job qualifications must be job-related and consistent with business necessity.

• What’s your advice on promoting High-potential (high-performed) employees where they may not meet the position education or experience requirements (such as, the employees may have 5 years of job experience instead of required 7 years of job experience required for this job) – how OFCCP is going to view this type of promotion/move?

  Job qualifications must be job-related and consistent with business necessity.  Are 7 years of job experience really needed for this job?  Did you reject other employees for the position, because they did not have the required job experience?  Consistency is key.

• Are employers required to tell applicants reason(s) for non-selection if asked?

  There is no OFCCP requirement to share with applicants the reason for non-hire.

• Dispositions: Do you need to provide descriptive disposition reasons for applicants that you choose not to interview? Or is "Qualified, but not selected for interview" adequate?

  Providing as much detail in your disposition reasons as possible will assist you to more easily “tell the tale” why the selection decision was made.  The list of disposition reasons provided in the training offered several other options, which may be used.  In addition, including Preferred Qualifications (as reflected in the job description) in the posting and not selecting someone for an interview because their application did not reflect the Preferred Qualifications while others selected for the interview did, could also provide another possible disposition reason.

• Does OFCCP require documentation for the rationale of salary offers?

  The OFCCP does not require documentation for the rationale of salary offers.  However, OFCCP Compliance Evaluations include a review of your pay practices and they may examine any differences in pay resulting from the evaluation.  If differences exist, it is the contractor’s obligation to provide evidence of why the pay differences occur, which certainly includes the factors and documentation utilized to determine a salary offer. Factors may include a particular skill or attribute; education; work experience; position, level or function; tenure in a position; performance ratings; or other factors. When the OFCCP conducts an analysis using pay analysis groups, they will test the factors you identify to confirm they are predictive of pay and neutral with respect to race, sex, and/or ethnicity.