Getting a Handle on Record Keeping Compliance in 2013
Federal contractors need help assessing risk and choosing a direction that will get their recruitment programs in compliance with the evolving regulations being aggressively enforced by the Office of Federal Contract Compliance Programs (OFCCP). The many layers of complexity are clearly frustrating contractors as the number of violations being flagged by OFCCP continues a strong upward trend under the current administration according to recent enforcement statistics. There are two broad issues that contractors can focus on that will provide some direction in their hiring program.

  1. One thing that must be addressed is the implementation of a documented and accessible recruiting policy, with an emphasis on rules for using social media.

  2. The other is a training program that focuses on accountability on recordkeeping, resulting in defensible and meaningful applicant pools being put into the Affirmative Action Plan.

The final rule for defining an Internet applicant went into effect in 2006, yet contractors are still struggling to get those involved, from recruiters to executive level staff, to understand the rules and to successfully blend compliance with successful recruitment. That is not to suggest that people are not reading the regulations as defining applicants in the Internet era has been a controversial, and thoroughly debated, topic since its inception. I think it's more of a case where hiring staff continues to feel burdened by regulations in a world of rapidly changing technology and people struggle to apply the rule into the infinite number of variations found within hiring. It's comical that after more than six years in effect, people still have as many questions as answers when it comes to proactive recruitment and recordkeeping requirements. I have been conducting webinars related to OFCCP compliance and recordkeeping rules for years and in almost every session, questions about defining applicants dominate the discussion. Today, the problem of recordkeeping is being compounded as recruiters move into the Facebook and LinkedIn space. Within the social media user groups related to compliance, people are posting questions almost daily expressing confusion about managing all those non-vanilla recruiting scenarios and in many cases, the answers are not absolute and they are loaded with "ifs."

Let's do a quick review of the four items that must all be in effect for a job seeker to be converted into an applicant. I know people have been reading about the requirements for years, but people continue to struggle with interpretation. Note that a job seeker must pass all four criteria to become an applicant, not just one or two items.

First - The individual submits an expression of interest in employment through the Internet or related electronic data technologies;

  • Meaning that contractors need clear requirements defining the process job seekers must follow and if they do not follow the rules, they will not be considered and will not be an applicant

Second - The contractor considers the individual for employment in a particular position;

  • There are piles of questions related to what "considered" means. Putting someone into a database does not mean they were considered. A substantive review of their requirements would mean someone was considered.

Third - The individual's expression of interest indicates the individual possesses the basic qualifications for the position; and,

  • Qualifications must be clear. The job seeker must meet the basic qualifications for the job. The key being that the qualifications must be clearly defined and defensible. Contractors should be concerned about qualifications that may no longer be applicable to the job because OFCCP is crushing contractors in audits, particularly in high volume, entry level jobs. Is the contractor conducting periodic reviews of the qualifications?

Fourth - The individual at no point in the contractor's selection process, prior to receiving an offer of employment from the contractor, removes himself or herself from further consideration or otherwise indicates that he or she is no longer interested in the position.

  • People always ask about when it is OK to leave people out of an applicant pool. Once you make an offer they are locked in. However, a common and sometimes valuable analysis might be to look at a comparison of applicants to offers in addition to an analysis of applicants to actual hires. The results may be different.

Looking ahead to 2013, we see recruiters going after a much bigger pool of passive and active job seekers that can be found on LinkedIn and Facebook. Hard to blame hiring staff, whose job it is to find the best candidates, for diving into a golden pool of profiles that includes significant detail on just about everyone who has access to a computer. With all the work history and qualifications right at their fingertips, recruiters are unsurprisingly refusing to be locked into limited resume databases of job seekers when their income is based on quantity and quality. At the same time, recruiting within these systems creates a huge challenge for contractors between recordkeeping obligations and the conflict with trying to keep hiring staff from being able to make selections they are supposed to be blind to such as race, gender, and disability status. Knowing that, it is the contractor's challenge to build the bridge between effective hiring and compliance. At this time, there is little formal guidance and plenty of risk when recruiting in social media. A practical suggestion is to ask those who you trust, network with professionals, and throw in a whole lot of common sense.

With the presidential election behind us, the challenge of adapting will be compounded by the supposition that OFCCP will continue their quest to dramatically enhance the requirements around recordkeeping and outreach. Compliance in 2013 will require that contractors acknowledge the issues that social media creates and then create a plan to protect the organization while still allowing recruiters to find top talent. No problem, right?

When creating a game plan contractors need to be acutely aware of the problems that social media creates such as:

  1. Social media introduces obvious potential for hiring discrimination if potential candidates are being ignored due to some part of their profile which should not be part of the hiring equation such as race, gender, disability, etc.

  2. Recruiters can access additional factors that may affect a desire to recruit the individual including personal photos, social activities, and other variables that don't belong in the selection process.

  3. OFCCP is very concerned about recruiting in social media and acknowledging that you utilize these tools will draw scrutiny for a whole series of reasons including:

    1. LinkedIn is underutilized by the African American and Hispanic community

    2. Facebook is heavily tilted toward users under 40

    3. Recruiters can evaluate or verify qualifications unwittingly posted by profile owners

    4. Information could be used as part of a background check

    5. Profiles often have references from friends in place of professional references

So what should contractors be thinking about headed into 2013? One method for developing a recruiting strategy is to consider risk tolerance and to build a plan around it.

The conservative approach – If the company is risk intolerant, then the plan would be to set firm rules for recruiting and job posting. Companies can severely limit the use of social media by:

  • Authoring a strict written policy that passes legal review where hiring staff are not allowed to recruit passive candidates for open positions and the use of social media is strictly limited to posting open jobs under approved company pages

  • Post the rules within the organization, provide annual (at least), documented training, and have recruiters sign agreements for use. Companies can threaten employment status for rules broken.

  • Have all application and EEO requirements and policies clearly posted on the company hiring site and social media pages

  • Always track the source of applicants where possible and be sure to avoid recruitment programs that might restrict diverse candidates

The moderate approach – A more flexible program that has limited tolerance for risk would:

  • Develop a written policy, approved by legal counsel, outlining the rules for recruiting in social media. Be sure to protect the company by defining rules for external recruitment. So if a policy is broken, then the company's liability can be contained.

  • Allow recruiters to leverage social media for recruiting with simple, yet specific rules in place to protect the company. Recruiters may browse for prospects and invite people to apply for a job within the company internal system.

  • Recruiters may only invite people to apply for a position using the company designated policies and recruiters may not perform steps of the selection process prior to candidates showing interest by responding to an invitation.

  • Conduct regular (at least annual) training on the topic and document the content and attendance. Also, provide access to training resources such as recorded webinars and easy-to-follow instructions.

  • One of the most important items, and it is the cost of a moderate approach, is to make an effort to track applicants who came from social media by placing an option on the application form as a recruitment source. Then the contractor must collect and analyze the data to ensure that there is no potential for discrimination creeping into the selection process. This is more difficult than people realize because an affirmative action plan (AAP) might identify a gap in the selection process between races or genders, but that alone does not tell the entire story. Contractors must also be cognizant of a possible lack of diversity in the applicant pool as well. Just because a statistical issue does not appear in an AAP does not mean that other issues won't creep up on you such as imbalanced applicant pools or perhaps a perceived freeze out of qualified candidates because they are not being invited into the hiring process for reasons mentioned previously.

  • If the company is a high-volume employer, the creation of mid-year analyses is a good idea. It is my impression that not enough companies perform mid-year checks of their hiring data.

  • Remember that the new EEO census file is due to be released. If your applicant pools are dramatically different than your plan availability pools, then this could get the attention of a certain agency within the Department of Labor (hint) if/when you are audited and we expect to see a lot of audits in 2013. In fact, a big wave of advanced warning and OFCCP scheduling letters went out on November 14th.

The progressive approach – Contractors can choose a more open, and risk tolerant, system that embraces social media and non-traditional recruitment efforts. This would be more of a high-risk, high-reward concept in hiring.

  • Work with a labor attorney to author general rules that do not prevent the use of social media in external recruitment

  • Provide training on how to utilize social media for recruiting with a theme of limiting liability without opening up the company to obvious recruitment problems

  • Review the annual affirmative action plan and look for red-flags in the hiring data. If the applicant pools are clearly being impacted, look to expand recruitment channels.

  • Keep your eyes open for warning signs such as complaints from applicants or an over-reliance on any single method of finding candidates. Good faith efforts are usually about spreading out and trying new channels for finding candidates.

An open format of recruiting adds to the challenge of record keeping because the company is relying on the hiring staff to identify who was interested and considered. The concept of tracking the online profiles that are reviewed by recruiters is a big challenge because there is no regulation stating that an online profile such as a LinkedIn or Facebook account suggests interest on the candidates' part. One element of the Internet definition of an applicant as posted by OFCCP is that the candidate must submit an expression of interest. Some might argue that having the online profile is in itself an expression of interest, but I do not subscribe to that theory.

It seems reasonable that contractors should talk to an attorney about defining their program (note this recurring theme) so that recruiters may invite people to apply and they will only be considered if they do, and if, in turn, the company has reasonable (diverse) applicant pools that do not solely rely on one method of external recruitment, then the company is behaving reasonably. This is why it requires regular monitoring because if the company does not analyze the results, they may find out that an issue is already embedded in their hiring culture. If OFCCP gets a hold of any data that suggests a gap in the hiring process, then the company cannot undo the damage and a notice of violation and likely conciliation agreement is on its way.

The concept of online recruiting is changing and it's not a stretch to suggest that paper resumes are on their way out as we continue down the path to an online culture where the battle for privacy is just getting started.