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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.
We have opened a position to fill. The position has been opened for about 90 days. We decided to go outside to a third party firm who ended up filling the position for us. We use our ATS to allow the third party to send us candidates so we can track the hire for metrics purposes. Since the hire was ours, I closed the position and disposition the candidate as not hired because my company was not the one who filled the position. The position will end up being a 6 month to term position. So, in 6 months we will reopen that position and put him in it with a note that he was hired as a 6 month to term conversion and this is now the conversion to make him our employee. I disposition any candidates that come into the system as "other candidates more qualified, better fit". Am I doing this properly or should I show the candidate as a hire even though it's not our direct employee?
I would very much like to have had some additional information in your question, but my goal is to cover several different possible scenarios. And I DO ASSUME for all purposes here that your firm is a government contractor subject to OFCCP laws and regulations. If you are not, I’ve got a short answer below – but do read the long one as well; it matters.
When it comes to the use of a third party (hereinafter TP), the short answer is ALWAYS that the employer who engages a TP to fill a position is liable for the actions of its “agent” when agent is acting on its behalf. Always. Another way to think of this rule is: “One can delegate authority; one cannot delegate responsibility. With respect to compliance with EEO/AA requirements – including all record keeping and analysis – the employer CANNOT AVOID these obligations simply because it engages a TP to do recruitment/screening and/or selection. NOTE: This is a complicated issue and beyond the scope of this Q&A but I encourage you to research this and to seek legal counsel from an attorney experienced in EEO/AA compliance and, in particular, your contractual arrangements with your Third Party recruiter/staffing organization. You need them to maintain -- and share with you -- the very same records you must keep for the recruiting/screening that you do for yourself.
Your situation is a good one in which to “What If?” the occurrence of an OFCCP review or other EEO investigation. What If – especially after you “convert” the Third Party’s employee to your own – it is alleged s/he was discriminatorily denied that position? Would you really expect to be home free by responding: “We didn’t do it, Third Party did it”? It doesn’t work that way and when we think about it, the reason seems obvious. Suppose that the Third Party’s recruitment was non-compliant with its customer’s obligations, and/or it unlawfully discriminated in its screening (of what I assume are “Internet Applicants”) and/or in its referral of candidates. This would mean that the entire process by which your employee was ultimately offered both the first opportunity for a 6-month temp assignment as well as the subsequent opportunity for regular employment was tainted. Third Party’s customer (in this case, your organization) is responsible for the actions of its agent: it was the former's employment opportunity that was/is DENIED to others. And, in my hypothesis, unlawfully and discriminatorily denied. It is precisely because such a thing CAN happen that the EEOC, OFCCP and other enforcement agencies demand that records be kept which will permit investigation of the “selection process” as it really was carried out – by whomever. And it is precisely why the employer cannot “benefit” from the unlawful discrimination of its agent even if it is itself entirely innocent in motivation and, very possibly, ignorant of what its agent had done.
With respect to whether/when the position should be/have been closed, that depends on what you did with respect to any job seekers who expressed interest in the position. If no one did – then you made no employment decision and there’s nothing to analyze. If no one expressed interest who met the definition of Internet Applicant then you must maintain such records in accordance with the OFCCP regulations but not include those job seekers in any analysis. If anyone met the definition of Internet Applicant -- i.e., qualifications assessed and rejected – (presumably the reason you went to a TP firm) then all those records (applications/resumes/dispositions/application/interview reviewer notes, etc.) should, in this situation, be moved to the re-opened position and counted/analyzed along with the person who was “converted”. At the time you convert him or her to regular employment OF COURSE the temp has the “most relevant experience”. But that won’t – and should not – fly as a defense if the temp got the assignment in the first place because any other(s) were unlawfully denied it! The compliance investigator won’t even have to break a sweat if s/he stumbles on this. THAT is when you will need those records – and those of the Third Party as well. Records are not only an indictment…often they are salvation!
Unfortunately, many employers have records that make it very difficult if not impossible to defend their own, much less their agents’ selection decisions. You’re using a not uncommon sort of disposition code but it is one that won’t be at all helpful if there’s ever a challenge to your selection decisions. It doesn’t convey any specific information on WHY an applicant was rejected and your plan to universally disposition all other job seekers suggests that it’s not accurate for at least some of them, perhaps any.
This single code is probably truly inaccurate for at least some job seekers to whom it has been assigned. It certainly isn't accurate -- and may not even be true! -- for any whose applications/resumes you never even read. It's also inaccurate for those (if any) who didn’t meet the “basic qualifications” for the position – as that term is defined by OFCCP regulations. It's also inaccurate for those (if any) who, implicitly, withdrew – e.g., application illegible, job seeker not willing to satisfy the terms and conditions of the job (e.g. shift, OT, travel, security clearance, legal to work in U.S.), etc. When an employer fails to ACCURATELY and CONSISTENTLY record “what really happened” it is very likely to create a statistical disparity that may not actually exist. Moreover, poorly designed disposition codes (or inconsistent usage!) will substantially hamper an employer’s ability to demonstrate that its selection decision(s) were, in fact, lawful, notwithstanding the disproportionate exclusion of some group. There’s a huge difference in the risk – and cost – of defending adverse impact caused by, for example, “No engineering degree” or “qualifications not as represented” or “recent work experience not applicable” than in the risk/cost of defending “other candidates better fit”.
“Other candidates more qualified, better fit” is a catch all term – and it does catch ALL. Consequently, it is too vague to permit the required analysis of your employment decisions. There really IS a difference in the employer’s risk for rejecting someone because s/he had less experience or less relevant education or a spotty work record versus “not a good fit”. What does that even mean? Others better qualified WHY? What’s the basis for that conclusion? Did you ever receive an empty email with the statement “This message has no content”? In my experience working with such data in order to (hopefully!) rebut a statistical indication of discrimination such disposition codes are exactly like that: they have no content. In such circumstances my clients have had only two choices: accept the OFCCP’s finding of discrimination and assessment of back pay, or expend very substantial efforts to [attempt to] recall and recreate history so as to figure out that which well-designed disposition codes would have recorded in the first instance.
As promised here is the "short answer” if you are not a government contractor. All the record keeping and other legal compliance obligations the employer assumes on behalf of its third-party agent are the same for both government contractors and any employer that is covered by Title VII. That is, both contractors and non-contractors have record keeping obligations and the obligation to determine if any of its selection criteria “adversely impact” any group based on race/national origin and sex. Such obligations for government contractors are, arguably, somewhat easier (because of the "basic qualifications" element of the "Internet Applicant" definition) although it also might be true that contractors are more likely to experience enforcement of these obligations.
Help with Job Descriptions
Asked by Anonymous - May 30, 2018
We're a DOD federal contractor that primarily hires software/systems engineers. We don't typically have "out of the blue," brand new, business needs...we are always looking for either Associate Software/Systems Engineers (more junior) or Software/Systems Engineers (mid-level +), however I believe we could do more to distinguish minimum required qualifications for both categories. For example, it's common that we'll leave the Software/Systems Engineer requisition up on our website year-round to catch any especially strong applicants that come in. We're in the midst of bringing on an applicant tracking system, however the current setup causes some issues as some engineers with 9+ years of experience are hired into the same job requisition as those with 3 years of experience, as an example, with dramatically different salaries which could lead to inequity (we do have a salary band structure). Also when they're hired, they're not hired into their own unique job requisition number. So my questions would be:
How narrow does each job description need to be in terms of minimum required qualifications? Is it acceptable to have open positions on our website that act more like active pipelines to cast a wide net, rather than a specific job description for a specific business need? Would we need to open an individualized job description per each hire, even if it's exactly the same job description as the rest?
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - May 30, 2018
It is best to distinguish these two categories (associate or more senior). Competitors for a particular job should have similar qualifications and the minimum qualifications should be in the job announcement. Applicants and hires with a wide range of experience can lead to problems in an audit. Further, it may not allow for an appropriate annual analysis. In my responses below, for clarity, I refer to the "job announcement" as that which applicants see, versus "job description," which typically is only seen by the employee. Answers to your specific questions follow:
How narrow does each job description need to be in terms of minimum required qualifications? There is no specific requirement for job descriptions or job announcements. I would look at it from a different perspective. What do you need the employee to do? Why are those the minimum qualifications for the job? That should drive the announcement. At that point, you have similarly-situated individuals competing whether it be entry level, mid level, senior level, or something else.
Is it acceptable to have open positions on our website that act more like active pipelines to cast a wide net, rather than a specific job description for a specific business need? Pipelines are tricky to do well. This answer depends on specific facts, such as how many applicants and hires for the positions, how long does the candidate in the pipeline stay active, and some other factors. Candidate pipelines often lead to questions in an audit, so these should only be used when absolutely necessary and documented very well.
Would we need to open an individualized job description per each hire, even if it's exactly the same job description as the rest? Merely opening a new announcement for each hire doesn't limit your pool for analysis if the applicant pool is the same or if applicants are carried over from consideration for previous hires. So the answer is no with the facts given above.
Probably the best idea here is to look at the analyses (all - hiring, compensation, etc.) with the appropriate pools, e.g., everyone in the pipeline together if that is who is considered for each hire, and see where the disparate impact exists. Then of course, make sure that the company can document a non discriminatory reason for the adverse impact.
Sourcing requirements for a pipeline
Asked by Anonymous - May 29, 2018
We want to create a pipeline of candidates for roles that we commonly recruit for but are not yet actual jobs. When the job opens, we have the candidate from the pipeline apply directly to the new job posting, and document our search in the internal pipeline database. (Including date, search criteria, etc.)
Do we need to also document our sourcing when we are ONLY sourcing for the pipeline itself?
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - May 30, 2018
Yes. I would absolutely recommend documenting this very well. This practice could expand the applicant pool in an audit, so it needs to be documented well, including, but not limited to, how long applications in the pipeline remain active, for what jobs, and the process for establishing who to contact and what the process is to notify them of an opening. I'd recommend talking thru the specifics a bit with your labor counsel.
Outsourcing open position to a 3rd party recruiter - How to best disposition and stay compliant
Asked by Meagan M. - May 25, 2018
I'm trying to figure out the best way to be compliant with OFCCP for a job that we started recruiting for ourselves but ended up outsourcing to a 3rd party recruiter (head hunter). We only reviewed about half the candidates that applied to our position before outsourcing to the 3rd party recruiter. We didn't close the position however, which was possibly where we went wrong. For those 10+ candidates that applied after we decided to use the 3rd party recruiter how do we show that they weren't actually considered for the position at all. As of right now I've marked them as "late applicants" because that is the best disposition I could find that seemed to fit. These candidates shouldn't be considered in our Affirmative Action reporting then because they weren't actually reviewed/considered by our recruiter, correct?
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - May 25, 2018
One anomaly in a hiring practice isn't uncommon. For this situation, the best practice would be to include those applicants that you did review in the pool for analysis along with those from the 3rd party recruiter's data. Those that applied after the position was outsourced can be dispositioned as "not considered" - and they are not applicants if you are using the internet applicant rule. If you have only certain dispositions in your system and "not considered" is not one of those, then it is certainly fine to choose another as long as that disposition is equivalent to "not considered." You could also enter a note or comment to explain that these candidates were not considered.
You are correct, Meagan. You are not required to report to the OFCCP (i.e. include in any analysis of YOUR selection decisions) individuals about whom you made no employment decision -- in this case, no review/assessment of their qualifications. I think it is better that you didn't close/re-open the req because one could argue that these individuals could have "competed" with those the 3rd party recruiter outsourced -- who presumably applied later. (Are you certain that the 3rd party recruiter did not review those 10+ job seekers?)
Based on the information you provided, however, I'll assume no one reviewed those 10+ job seekers. And, I assume, that whatever the reason for not "considering" those applications was, it was NOT because they were "late". Consequently, you are also correct to be concerned with assigning a disposition code that doesn't reflect what happened.
If you have a deadline for submitting applications/resumes (and if you do, good for you!) and a job seeker doesn't meet that deadline the job seeker hasn't followed a rule for applying. Another such "rule" might be that they must apply in person. Or that they must apply on line. Or that they must provide a telephone number at which they can be reached or can receive a message. But if a person follows whatever rules you establish (and they can be different from job to job) then all such job seekers should have an equal chance to be "considered". If they don't the employer is, no doubt, "managing" its applicant pools in some fashion. And that's good, provided the employer is consistent at least with respect to the selection process for each particular opportunity. For example, if you are in a "crunch" to fill a vacancy for a position that doesn't require a great deal of skill you may conclude that for Requisition A you expect to be able to find someone qualified within a pool of, say, 30 job seekers. That's all the resumes you're going to read, period. But Requisition B is for a job that is difficult to fill and for which you don't receive many expressions of interest. For that opportunity you are going to leave the req open for a long time and read each and every expression of interest as they come in.)
Why did you not review those 10+ expressions of interest? Did you review apps/resumes as they were received and you just hadn't gotten around to reviewing prior to deciding to outsource?
Or did you not review them because you reviewed internal job seekers first?
Or because you were focused first on local job seekers because you wanted to avoid relocation expense?
When you accept (i.e. don't take down the job posting) but don't review all expressions of interest, it's important to have some protocol --unrelated to qualifications for a particular position -- to determine how you will define those that will be "considered". It is FINE not to review them all; I ENCOURAGE the smallest pool of genuine "applicants" that serves an employer's need! If you don't have such a protocol, I strongly urge you to establish such. Don't review hundreds of applications just because they are there!
If you do have such a protocol -- even if heretofore it has been "informal" -- then you need a disposition code that captures what happened, i.e., "Job Filled Prior to Review of Application". And if challenged to explain why you didn't "consider" any/all of the expressions of interest that you did not review, you need to have an answer.
It seems this particular situation was a bit unique in that you decided to outsource after you had already done some recruiting yourself. But I would be surprised if -- at least for some jobs -- most employers didn't have occasions when they received "too many" applications. In such cases, the OFCCP regulations provide important guidance on how to "manage data", but there are other, less formal and more common methods such as "rules" for applying, "first in/first reviewed", "every third resume in the stack", etc. What happened here, presumably, (whether by outsourcing or not) was something that I think is rather common, the employer made a choice without reading every expression of interest submitted. It filled the job prior to reviewing all the applications. That's the Disposition Code I recommend you add.
I hope you will allow me another recommendation In my view, the term "job seekers" is better than the term “candidate" for everyone that expresses interest unless and until such time as the employer takes some action to "consider him/her for a particular position". I believe that many people think the term "candidate" implies that the individual has already passed thru some "hoops" in the selection process -- that the employer has conveyed some greater "status" to the individual, possibly greater even than "applicant". "Job seeker" is all about what the person has done and nothing about what the employer has done. Perhaps I'm wrong, but for me the acid test is that if I applied for a job I longed for I'd feel more hopeful of success if I were characterized as a "candidate" rather than simply as a "job seeker".
Additional Outreach postings in our ATS
Asked by Cheryl H. - May 22, 2018
We are contracted with LocaljobNetwork.com and our jobs are posted with all diverse organizations locally for us. In addition we are having our recruiters add at least one organization for Women, Veterans, Minorities and People with Disabilities to each job they post, is this necessary since it is already being done by our vendor? When they add it sends an email to the representative for that organization alerting them that we have a position open.
Is this a requirement in order for us to be compliant as a contractor? It is very time consuming and will continue if it is a requirement, but if it is a duplication of efforts would like to know.
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - May 25, 2018
It depends on whether your company is meeting its utilization goals. If it is, then current methods are working and while the company must remain diligent in its affirmative action efforts, but need not necessarily develop additional sources. However, if not meeting the goal, then current methods need to be evaluated and additional sources found. (In other words, if a company is not meeting the utilization goal with current methods, then additional sources need to be identified because current sources are not enough.)
§60-741.45 Utilization goals. Part (e) states:
Identification of problem areas. When the percentage of individuals with disabilities in one or more job groups, or in a contractor's entire workforce as provided in paragraph (d)(2)(i) of this section, is less than the utilization goal established in paragraph (a) of this section, the contractor must take steps to determine whether and where impediments to equal employment opportunity exist. When making this determination, the contractor must assess its personnel processes, the effectiveness of its outreach and recruitment efforts, the results of its affirmative action program audit, and any other areas that might affect the success of the affirmative action program.
Making edits to a closed posting and reopening it under a new job title
Asked by Melissa B. - May 16, 2018
One of our managers opened a closed posting that previously had 39 applicants, changed the job title and job information and reopened it. Two candidates applied and the posting was again closed within a day. Do I need to have the posting changed back to what it was originally (job title and information) and post a new job having the candidates reapply for the new one?
Answered by Lisa Kaiser from The Kaiser Law Group, PLLC - May 16, 2018
Best practice is to have a new posting and require applicants to apply for each job in which they are interested. It seems from the limited information we have, that this event was an anomaly and not the regular practice. That's good. If it's possible (i.e. no further action was taken on the reopened posting), it would be best to ensure that there is a record of the posting as it was originally and then open a new one and require individuals to apply directly to the new posting. As always, keep a record of anything unusual, mistakes or special circumstances in your hiring or other personnel practices in case of an audit.
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