You are currently not authorized to access this section.
Please contact your Administrator to change your authorization settings.
OFCCP: Ask the Experts
OFCCP Ask the Experts
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.
Job Posting & Data Collection for Temp Positions Using a Self-Sourcing Model
Asked by Gina C. - Mar 30, 2017
I have a few questions regarding self-sourcing for temporary contract types of positions. The scenario is that we (federal contractor) would self-source without any job posting for Temp Job Postings up to 72 hours and then if not, successful would turn it over to the approved 9 vendors through our VMS. In the case, we are successful and found someone on our own, through passive searches on Linkedin, associate referrals, school or local agency referrals, etc., we would then payroll the temp through a separate payroll service vendor. Our involvement would be to source and screen the candidate. They wouldn’t be an applicant, since they aren’t applying to a particular job, but would be reached out to for one. Again, it’s a “temp” and not a “perm employee”, that I’m referring to.
That all being said, would we need to have the payroll service vendor post the temp position to the State Unemployment Office even if it’s only for a 3 day time period or have them post the position for the entire 30 days, or do they need to post at all? If we had the payroll service vendor post the temp position, would we then have any resume submissions go directly to them and forwarded along to us the employer. In the case, the position were to go out to an approved vendor after the 3 days, then the staffing firm will be responsible for posting the position to the State Unemployment Office and doing any diversity outreach on their own, since the temp would be on their payroll.
My other question is on the database or resume searches, would we need to collect and retain info when it pertains to “temps”? I’m speaking on documenting the date of the search, the criteria, radius, and the results of your search (#).
Lastly, we do plan on using a Temp Only-Talent Community to collect information on referrals, those that come across our career site, or that we self-source during those 3 days only to not conflict with the approved vendors that the temp position will go out to. Is that alright that we handle the data collection in that manner?
You have raised many, many issues in this post relating to the recruitment and selection of temporary candidates. A complete response would require about 14 pages of looking at all of the intersecting issues here, and I don't think you want a 14 page treatise.
Many companies use temporary agencies in order to off-load both recruitment and selection processes. When a federal contractor signs an agreement with a temporary agency to find individuals who remain on the temporary agency's payroll, the federal contractor can appropriately say about these individuals "They don't belong to us. They are not our applicants, as we did not control the recruitment or selection process, and they are not our employees, as we do not pay them nor directly control their work status."
NOTE: there has been much discussion in the last few years about "co-employment." It is reasonable to assume that during a Trump administration, this issue of "co-employment" may become less of a concern, but it's important to understand that this issue will not entirely go away.
Back to your specific situation. You indicate above that your company (not the temporary agency) is doing the sourcing for candidates who are then sent to the temporary agency. You also indicate that "Our involvement would be to source and screen the candidate. They wouldn't be an applicant, since they aren't applying for a particular job but would be reached out to for one."
You have a problem. Based on what you've stated, your organization is not only doing recruitment, it is also also doing selection for candidates who ultimately are sent to the temporary agency. OFCCP would tell you that these candidates are, in fact, your applicants, regardless of where they ultimately end up. You are simply using the temporary agency as a holding place. When candidates come back to you through the temp agency, it is your company that has done recruitment and initial selection of candidates, and if there is conversion of any of these candidates to the regular payroll, you will have done recruitment, selection, and hire of these candidates.
When your organization does recruitment and selection of candidates, you must follow OFCCP's rules about recruitment and selection. The most basic rule says there can be no discriminatory conduct in this regard. However, OFCCP will also tell you that you need to make outreach efforts to find qualified minorities, females, protected veterans, and individuals with disabilities as part of your recruitment efforts. OFCCP will further tell you that you must collect demographic information on race, ethnicity, gender, protected veteran status, and disability status from viable candidates (i.e. from "Internet applicants"), that you need to analyze data on viable candidates, that you need to ensure you have basic qualifications for positions that are objective, non-comparative, and job-related, and so on. Finally, if you are doing the recruitment for candidates, your must list the relevant position with the appropriate state employment service office.
Here's my strong sugestion: if it is your intent to use a temporary agency in order to avoid dealing with the data collection and record-keeping associated with recruiting candidates for temporary positions, then you should have the temporary agency do the recruitment and screening of candidates. Otherwise, you will find yourself in the position where OFCCP expects that you have followed all of its rules regarding recruitment and selection for candidates who may or may not be converted to your regular payroll.
You indicate that persons to be sent to temporary agencies "wouldn't be an applicant, since they aren't applying to a particular job, but would be reached out to for one." Unfortunately, that's not the way that OFCCP's Internet Applicant rule works. The Internet Applicant rule requires that candidates express interest, but the agency has made it clear that when passive recruitment is occur, there can be a tacit expression of interest that becomes active once the candidate is contacted about an opening. Further, when you consider a candidate for a position (even if the candidate will be ported over to a temp agency), you have "consideration" under the second part of the rule and you help to establish interest by the candidate under the first part of the rule. This again leads me back to my advice that you should have your temp agency do the recruitment and selection of candidates if you want to avoid having these candidates be your applicants.
In regard to listing with the state employment service, if you continue to recruit and screen candidates and a position has a duration of four (4) days or more, you would be responsible for listing the position. If you allow your temp agency to do the recruitment and screening for candidates, then the temp agency should be told that the temp agency MUST list your potential positions with the appropriate state employment service office. If the temp agency does the recruitment and screening of candidates and does not do this listing, then your organization would be required to do this listing at the time you are considering a temporary candidate for conversion to your regular payroll. (This, of course, is a very inopportune time to do this listing, as you are unlikely to actually consider any additional candidates if you have one or more viable temps to consider for conversion.)
In regard to database searches, if your organization is doing the recruitment and selection of candidates, you would need to collect and retain information associated with that search.
I don't have much additional space to deal with your Temp-Only Talent Community question, but the bottom line is that you need to collect demographic data and record information regarding candidates your organization is involved in recruiting and screening. You may need to reconsider how you would form this talent community if you follow my advice above.
Contact me if you wish to discuss these issues further. Good luck.
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.
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.
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!
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.
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!
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.
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.