DEAM16 Pre-Conference Recap | OFCCP Compliance with Candee Chambers and John C. Fox

This past May, attendees of the DirectEmployers 2016 Annual Meeting & Conference (DEAM16) had the opportunity to attend educational pre-conference sessions centered on recruitment marketing and OFCCP compliance topics. The compliance track was headed by two familiar faces – DirectEmployers VP of Compliance & Partnerships, Candee Chambers, and employment law attorney, John C. Fox of Fox, Wang, & Morgan P.C. – two of our compliance experts. With the state of the ever-changing regulatory environment, federal contractors were more than eager to learn about the classification of an applicant, outreach documentation and recordkeeping, as well as how recruiters and compliance managers can work together better.

In case you missed it, here are some key takeaways from the three sessions, as chronicled by John C. Fox himself:

Pre-Con 1A | Who Is An Applicant

1) The objective of an Interested Person Flow Log (by whatever name) is to:

1. First, document whether the “job seeker” is “not an applicant,” and then
2. Second, document all “offers” made (regardless whether accepted or whether the offer led to a hire); and then
3. Third, document the legitimate non-discriminatory reason(s) for rejection of those “applicants” not offered

2) There are three primary prongs to the legal definition of the term “applicant”:

1. Interested
2. Minimally qualified
3. Considered for existing opening

3) A Practical Checklist: Seven Ways to Minimize Potential Liability

1. Employers should design and follow a Corporate Application Formality to document who is not an “applicant” and the Legitimate Non-Discriminatory Reasons For Rejection of “applicants”
2. Clarify all apparent expressions of interest, if unclear
3. Employers should establish an “Active Consideration” period during which it will consider an application active (before retiring it)
4. Cause applicants to apply for a specific job or jobs, but not “any open position”
5. Determine if the candidate is “minimally qualified”
6. Track loss of applicant interest
7. Consider a posting system to fix “interest” of incumbents

Bonus Practical Tip: Pringles are not potato chips (See full presentation on DirectEmployers Community for more information)

Pre-Con 2A | Documenting Outreach & Recruitment & Fulfilling Your Recordkeeping Obligations for “Hires” & “Applicants”

1) Disposition Codes should document what happened to your candidate during your employment process

1. Did company consider the job seeker?
2. Did candidate meet basic qualifications (AKA minimum qualifications)?
3. Did candidate express and maintain interest in the job?
4. What were the legitimate Non-Discriminatory Reason(s) for Rejection if “applicant” not offered?
5. Did the Applicant decline offer?

2) Bottom Line On Disposition Codes:

1. Do not be overly general with your disposition codes – use codes that someone looking at the files a year from now could comprehend
2. Never use the following:
   1. Not selected
   2. Rejected
   3. Selected more qualified candidate
   4. HR candidate tracking information (i.e. sent to medical; waiting for background check, etc.)

3) For Evergreen Jobs/Pipeline Requisitions/High Volume Requisitions don’t:

1. Move “applicants” from one requisition to another
2. Have any one-for-one hires – one “applicant”/one hire
3. Reconsider “applicants” without requiring them to complete an entirely new expression of interest for the new position of interest
4. Place your company in a position where steering claims could be brought by the OFCCP
5. Move males/non-minorities to higher paying jobs and move females/minorities to lower paying jobs

Pre-Con 3A | Summary Collective Strategies For Recruiters and Compliance Managers to Work Together

1) We are all in this together
2) DirectEmployers Member, Mike Bazinet of Grifols USA Inc., managed the integration of recruiters into compliance through training and exposure to each other’s job tasks and now has a team that cooperates efficiently together
3) Compliance Tasks Which Intersect With Recruiters

1. Executive Order 11246 Requirements of Interest
   1. Executive Order 11246 Pre-Offer of Employment federal contractor invitation to those expressing interest in employment to self-identify “gender, race, & ethnicity”
   2. Documenting outreach and recruitment for minority and female “hires” and “applicants”
2. Section 503 Requirements of Interest
   1. Section 503 Pre-Offer of Employment federal contractor invitation to those expressing interest in employment to self-identify whether they are an individual with a disability
   2. Section 503 “Data Metrics” Collection Form: (To assist with federal contractor’s Annual “Effectiveness Review” of outreach & recruitment of individuals with disabilities)
3. VEVRAA Requirements of Interest
   1. VEVRAA Pre-Offer Self-Identification Form: For those expressing interest in employment to self-identify “Protected Veteran” status
   2. VEVRAA “Data Metrics” Collection Form: (To assist with federal contractor’s Annual “Effectiveness Review” of outreach & recruitment of protected veterans)

A special thank you to John and Candee for continuing to provide DirectEmployers Members with the valuable information they need to successfully navigate their compliance obligations as federal contractors. Want more OFCCP compliance education? Join them for a free two-hour webinar this Thursday, June 30 at 2:00pm EDT as they discuss Changes Federal Contractors Must Now Make To Comply With OFCCP’s New Sex Discrimination Final Rule. Reserve your spot now!

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