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The Amazing, Confusing and Sometimes Shocking World of Government Compliance (Part Two)

By Kathy Barton, March 15, 2007

You give 100 percent in the first half of the game, and if that isn't enough, in the second half you give what's left. - Yogi Berra

This week we'll talk about the issue of recordkeeping around individuals that have been considered for a job. (The second part of our two-part article on OFCCP compliance.) Unfortunately, it's not as easy as defining who is an applicant, following that definition consistently, and gathering EEO data on that applicant. The OFCCP now requires companies to keep records on individuals that have been considered for a job, not just on applicants.

Read more articles by this author.

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Defining an applicant is simple compared to the questions around who has been considered for a position and what kinds of records you need to keep on those individuals. The Definition of an Internet Applicant also contains information on the records contractors must maintain when hiring, using the Internet, and the records that the OFCCP will require contractors to produce when auditing. Specifically, the OFCCP requires contractors to keep records of all indications of interest 'considered' by the employer for a particular position.

So just what does considered mean, you ask? The OFCCP FAQ states that considered "means that the contractor assesses the substantive information provided in the expression of interest with respect to any qualifications involved with a particular position. Under this definition, 'considers' involves the assessment of the job seeker's qualifications against any qualifications of a particular position, including a determination of whether a job seeker meets the basic qualifications for the position."

Well, that clears it up, doesn't it? The huge headache for recruiters, that is somewhat hidden in this statement, is that the OFCCP specifically deems a resume database search "consideration". When you think about it, that makes sense. When you enter a search string into a database engine, and it matches that string against the contents of a job seekers resume, it is comparing your search against their qualifications. The real issue that the OFCCP is trying to get to here is whether the search strings that contractors are using to create the applicant pool are in themselves discriminating against some individuals.

For example, let's assume your job recruiting area is 35% Hispanic and your financial analysts are only 5% Hispanic. If your recruiters consistently search on Harvard and MBA - and, as it turns out there just aren't many Hispanic Harvard MBAs - then that search in and of itself is discriminating against Hispanics. Remember, discrimination doesn't have to be intentional to cause adverse impact to a specific group. Next, the OFCCP is going to want to know how you validated the fact that a non-Harvard MBA couldn't do the job as well as a Harvard MBA. If you can't produce valid evidence to indicate that Harvard MBAs perform significantly better in that role than a non-Harvard MBA, you're in trouble.

Once you understand that this is the problem that the OFCCP is trying to address, the information they are looking for becomes more understandable. For searching internal databases, contractors are required to keep:

• Each resume - candidate added to the database
• The date that resume - candidate was added
• Search criteria
• Search date
• Position for which each search of database was conducted

This allows the OFCCP to look at the search criteria; then, compare it to the position you were searching for, and if necessary recreate the search to see if some people were adversely affected. For searching external databases, contractors are required to keep:

• All resumes - candidates that meet basic qualifications
• Search criteria
• Search date
• Position for which each search of database was conducted

Because you don't own the external database, the OFCCP can't expect you to be able to recreate the search. However, they will be able to look at the resumes that the search brought back and see the search criteria and the position.

Above, there's a mention of basic qualifications. This is a critical issue, because it is in the definition of basic qualifications that the OFCCP is trying to avoid database searches that are inadvertently discriminatory. The "basic qualifications" which an applicant must possess means "qualifications that the contractor advertised to potential applicants or criteria which the contractor established in advance". In addition, the qualifications must be:

• Non-comparative features of a job seeker (e.g. three years' experience in a particular position, rather than a comparative requirements such as being one of the top five among the candidates in years of experience);
• Objective (e.g., a Bachelor's degree in accounting, but not a technical degree from a good school); and
• Relevant to performance of the particular position.

The OFCCP wants contractors to use these basic qualifications to do searches of resume databases to create the applicant pool. Once you have the applicant pool, and you have collected everyone's EEO data, you can continue to narrow the pool by any additional search criteria you choose - through assessments or through face-to-face interviews. The OFCCP doesn't really care, because at this point they have access to the EEO data, and they can compare that to the hires that you make to determine if there is adverse impact. If there is adverse impact, then they will go back and look at your hiring process. (So, you had better be monitoring it and finding any problems before they do!)

There are some additional wrinkles around using data management techniques to reduce the number of people with basic qualifications that you consider, but I won't go into it here. These are intended to help contractors deal with the sheer volume of resumes returned from a search - without making the recordkeeping requirements too burdensome.

Here are some recommendations to help with recordkeeping:

1. Define basic qualifications for all your positions before you advertise for them. You don't have to put the basic qualifications in the ad, but you need to have them defined beforehand.
2. Make sure that your recruiters use these basic qualifications to do the searches that make up your applicant pool. The searches are being recorded now; so make sure you train your people in the meaning of basic qualifications.
3. Divide your recruiters into two groups: sourcing experts and candidate managers. The first group creates the applicant pool with resume searches and networking and is fully trained in the OFCCP requirements. The second group works with the candidates after they are applicants. For this group nothing changes. The Definition of an Internet Applicant only applies to what you do before someone becomes an applicant.
4. Make sure that your technology is keeping the required data for resume searches for your sourcing recruiters, so that they don't need worry about it.
5. Integrate job boards like Monster and CareerBuilder into your ATS, so that you can easily and directly import the resumes returned in an external resume search.
6. Most of all, don't forget that your job is still to get the best person in the job!

Good luck!