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Conquering the maze of Affirmative Action laws and regulations can be daunting. Okay, it can be overwhelming. But the Office of Federal Contract Compliance Programs (OFCCP) has provided some helpful tools to guide you to the answers you seek.

One of my go-to places for answers is, you guessed it, OFCCP’s Frequently Asked Questions. And my most frequently asked questions relate to the Internet Applicant Recordkeeping Rule. Did you know the answers to these questions already existed?

Q: Section 60-1.3(5) of the Internet Applicant rule states that one way a contractor can conclude a job seeker is not interested in a position is the individual’s passive demonstration of disinterest, shown through repeated non-responsiveness to inquiries from the contractor about interest in the position. How many times must a contractor attempt to contact an individual to conclude that he or she has shown disinterest through “repeated non-responsiveness to inquiries”?

A: A contractor may conclude that an individual has shown disinterest after two or more non-responses to inquiries by the contractor. A contractor may also determine that a job seeker has withdrawn from further consideration for the position based on information the individual provided in the expression of interest.

Q: If a job fair recruiter suggests that a job seeker apply for a position through a specific requisition, and the job seeker fails to do so, is the job seeker an applicant or an Internet Applicant?

A: No, provided that the contractor has a uniformly and consistently applied policy or procedure of not considering similarly situated job seekers. Note that discrimination in recruitment also is prohibited by the Executive Order. It would be discrimination for a recruiter to treat job fair job seekers differently based on race, gender, or ethnicity in terms of providing specific requisition information.

Q: Must a contractor retain resumes when the contractor’s representative meets with students on campus recruiting trips to discuss general jobs, for which a student may be qualified, if the contractor advises all students they must apply through the contractor’s website to be considered for a particular position?

A: A contractor must retain resumes for any job seeker it considered for a particular position. If a contractor’s representative meets with students to generally discuss the types of positions available with the contractor, and advises all students that job seekers must apply through the contractor’s website to be considered for particular positions, then the contractor is not considering the students for a particular position during the college recruiting visit and their resumes need not be retained. The contractor should take care to apply such a protocol in a uniform and consistent manner. It is the contractor’s actual practice that determines whether a contractor has considered a resume.

OFCCP Directives are also a great source of information on how the OFCCP interprets and creates policy and procedures for the laws it enforces. Here is the OFCCP’s definition:

“A Directive (DIR) is intended to provide guidance to OFCCP staff or federal contractors on enforcement and compliance policy or procedures. A DIR does not change the laws and regulations governing OFCCP’s programs and does not establish any legally enforceable rights or obligations.”

Quite frequently, I get questions about the audit process and the potential outcomes. One aspect to those questions is the monetary/financial impact. OFCCP Directive 310 states:

“This directive identifies basic principles applicable to the use of the formula and individual relief models for the calculation of back pay as a remedy for discrimination. The directive indicates when it is appropriate to use formula relief or individual relief and the elements that should be considered in making this determination. In each instance, OFCCP makes the decision as to which model is used in determining relief in a specific case, not the contractor. The directive also provides guidance on calculating back pay, including addressing mitigation when raised as a defense by the contractor, depending on the model used.”

Did you know shortfall is one of the calculation methods the OFCCP uses when using the formula relief method?

Formula relief method: “A method used in systemic discrimination cases for calculating a total amount of the back pay for an affected class of discrimination victims, that is then divided (pro rata or otherwise) among all the members of that class who are eligible, successfully identified, and agree to participate in the settlement. In appropriate circumstances, formula relief may also be used to assess other types of class relief for discrimination victims.”

Shortfall: “The difference between the actual number of persons in the non-favored group that were selected for the employment opportunity at issue (hires, promotions, etc.) and the number expected to have been selected in proportion to their representation in the pool of qualified candidates, absent discrimination. This concept does not generally apply to compensation discrimination cases”

Did you know the OFCCP has published the manual it provides to its compliance officers on the procedures for conducting audits?

Well, one of the first things to know is they call them compliance evaluations.

The Federal Contract Compliance Manual is a 536-page instruction manual. Trust me when I say this is a wealth of information, but trust me equally as much when I say you want to be fully caffeinated when you begin reading it.

Here are a few sections I think are of particular interest:

  • Scheduling Letter and Itemized Listing – Figure F2
  • Standard Compliance Evaluation Report (SCER) – Appendix A-1 the form, A2 the instructions
  • Instruction on conducting on-site evaluations – Chapter 2
  • Standard Text for Conciliation Agreement – Figure F5
  • Employment Discrimination Remedies – Chapter 7

Check out these resources to help you stay in compliance before an audit, but also to help you know what to expect during an audit.


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