Welcome!
2012 IAEWS
Winter-Spring Webinar Series
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Improving Operations and the Bottom Line
The Topics
• Auditors Gone Wild
March 6
• It’s Not Your Grandmother’s Job Posting
March 20
• The Legion of Super Job Boards
April 10
• What Job Board Users Want
April 24
• Job Search & ‘The Black Hole’
May 8
Sign Up: [email protected]
Ted Daywalt
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CEO & President, VetJobs
President at TAMB Associates
Retired Captain, USN
Executive in utility, steel and biomedical
waste
• Board of Governors, IAEWS
AUDITORS GONE WILD
DOJ & OFCCP Concerns for
Job Boards
Ted Daywalt
What We Will Cover
• OFCCP
• Threat sources from DOL & DOJ
• Recent regulatory issues regarding job boards
Disclaimer
I am not a lawyer. The purpose of this
presentation is to inform you about trends and
provide ideas for discussion based on what I
and others have seen happen in the market
place. The information presented should not
taken to be legal advice. You should consult
an attorney competent in labor law for legal
questions before acting on anything discussed
today.
Department of Labor - OFCCP
Office of Federal Contract Compliance Program
• OFCCP handles the enforcement of equal employment and
affirmative action laws affecting applicants seeking employment with
the U.S. government or a government subcontractor
• Discrimination based on sex, race, color, religion, national origin
and/or disability is prohibited
• If discrimination is found to occur, violator can be fined, ordered to
submit back-wages and/or incur other severe penalties
• Rules apply to any sub-contractor regardless of size
• Rules apply to candidates sourced from any recruiting source
Internet Applicants (IA)
Individuals are considered to be IAs if
they fit the following criteria:
1. Express explicit interest in the position through
online channels
2. Are considered by the hiring manager
3. Meet the basic qualifications for the position
4. Do not decide to remove themselves from the
pool of candidates prior to any job offers
IA Complaints
• Employers have to keep a record on the IA until
the IA decides to no longer be a candidate!
• If a candidate feels they have been wrongfully
denied a position based on any of the EEO criteria
they are within their rights to file a complaint with
the OFCCP against the employer and possibly
against the job board!
OFCCP Mandate
• OFCCP by statute has only one mandate to ensure fair and equal employment
opportunities and to eliminate
discrimination.
• OFCCP mandate is not to ensure that a
company makes a great hire. "Quality of
hire" or “hiring for skills” is not part of
DOL’s lexicon.
OFCCP Staff
• Quadrupled staff over last four years
• 2012 budgeted to add 3,200 more auditors!
Record Keeping Requirements
• Under 41 CFR 601.12, OFCCP compliance is the
exclusive responsibility of the employer, NOT the job
board
• Companies are responsible for all record requirements
• Companies must maintain continuous records of hiring
activities for varying amounts of time depending on the
company size or government contract amount
1 Year: <50 employees/contract under $150,000
2 Years: >50 employees/contract over $150,000
Warning to Job Boards
Do not claim that you provide OFCCP
compliance, only compliance support
Record Keeping Requirements
• Companies must track candidates interested in their job
openings, but ONLY if the candidate is considered
• Outreach to any sourced candidates must be tracked
• By statute, resumes that are pulled offline need to have the
following data points tracked and recorded:
1.
2.
3.
4.
Associated search terms used to find the candidate (search string)
Tracking of all applicable resumes considered in a search
When the actual search was performed
When the resume was added
Warning to Job Boards
• Do not be surprised if two year rule is
expanded to 5 years!
• Implications for your storage requirements
Job Board Resume Databases
Companies and their ntractors 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.
2012 OFCCP Emphasis
OFCCP will focus more on veterans and
disability issues.
Formerly focused on women and minorities.
OFCCP v. UPMC Braddock, ARB
Case No. 08-048 (May 29, 2009)
Department of Labor Administration Review Board (ARB)
issued a ruling that hospitals contracting with an HMO to
provide medical services to federal employees are to be
considered “subcontractors” even when the subcontract does
not have written EEO and Affirmative Action provisions and
in spite of the fact that none of the three hospitals held a
federal contract!
Change with new DOL
GFA vs GFE
GFE
• Traditionally, “GFEs” concentrated on
minorities and females
• The current “GFE” focus is on veterans and
the disabled
GFE Type Assessments
• Too few applicants for the number of hires
• Too many applicants for the number of
hires
• Troubling disparities in selection rates with
little, or no, or inadequate data to explain
OFCCP Dichotomy
Information provided by OFCCP trainers and
instructors
Versus
Actions by OFCCP auditors in the field
Statute versus Reality
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DOL reinterpreted OFCCP to cast larger net
Have data available immediately during audit
Repeat audits
Auditors asking for screen shots of jobs posted on job
boards
Statute versus Reality
• Auditors want proof of who did a resume search
• Auditors want proof of what a resume looked like at the
time of the search
• Auditors want proof that your job board received a job
and/or batch and the job was posted
• Auditors asking for proof that a company posted to your
site, generally wanting a copy of the contract/posting
agreement
Audacity
• Conversation with NYC OFCCP
Threat to job boards
• Possible law suits from customers
• Job boards may become subject to audits
DOJ - Citizenship Requirements
DOJ directs that employer job postings avoid
the following language:
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"Only U.S. Citizens"
"Citizenship requirement"*
"Only U.S. Citizens or Green Card Holders"
"H-1Bs Only"
"Must have a U.S. Passport"
"Must have a green card"
*UNLESS U.S. citizenship is required by law, regulation, executive order, or
government contract.
Warning to Job Boards
Do not have fields asking for race, color,
immigration status or citizenship status
DOs for Internet Job Boards
• Require employers, recruiters, and others posting employment ads to
sign a membership agreement or client contract that require
compliance with all applicable equal employment opportunity laws,
including the anti-discrimination provision of the Immigration and
Naturalization Act, and:
• Prohibit any posting that requires U.S. citizenship or lawful permanent
residence in the U.S. as a condition of employment, unless otherwise
required in order to comply with law, regulation, executive order, or
government contract.
• Prohibit any job requirement or criterion in connection with a job
posting that discriminates on the basis of citizenship status or national
origin.
DOs for Internet Job Boards
• Do create a link for employers posting directly on
the website that outlines prohibited employment
practices and email the link to employers prior to
permitting a job posting on the site (DOJ)
• Do send employers an email each time the
employer posts mass job announcements via file
transfer protocol (FTP) that includes a link to the
prohibited job postings link mentioned above.
(DOJ)
DOs for Internet Job Boards
• Do create an Equal Employment Opportunity page or an
Employer Resources page discussing EEO issues and
prohibited job postings. For further reference, these pages
can link to the website of the Office of Special Counsel for
Immigration-Related Unfair Employment Practices (OSC)
at http://www.justice.gov/crt/about/osc
DOs for Internet Job Boards
• Do monitor employers’ postings and pull
ads that use prohibited discriminatory
language or criteria.
DOs for Internet Job Boards
• Develop a system to deliver customer jobs
to state job board sites
• Develop a system to email customer jobs to
workforce centers to include DOL
employment representatives, Veteran
representatives (LVER & DVOP)
DOs for Internet Job Boards
Recent case – job board had a job posted by an employer that stated “U.S.
citizenship required”
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Result: $25,000 assessment levied on the employer
Job board says DOJ was gestapo like in business
Job board subjected to threatening tactics and possible assessment
DOJ contacted company AND the job board and told them they were
guilty of immigration discrimination. Even after company made
changes DOJ still went after an assessment form both
• Accused job board operator of having committed immigration
discrimination for having question “Are you eligible to work in US?”
Since the settlement, the job board reviews every job going on the site and
has refused some postings
Soon to Come
• DOL proposal that all companies have a
minimum of 7% employees be disabled
Conclusions
• Attitude of DOL & DOJ towards private industry
is punishment
• Social re-engineering drives many of the decisions
References
• Department of Labor
www.dol.gov/ofccp
• Department of Justice
www.justice.gov/crt/about/osc/htm/best_pract
ices.php
Questions?
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