Federal contractors need help assessing risk and choosing a direction that will get their recruitment programs in compliance with the evolving regulations being aggressively enforced by the Office of Federal Contract Compliance Programs (OFCCP). The many layers of complexity are clearly frustrating contractors as the number of violations being flagged by OFCCP continues a strong upward trend under the current administration according to recent enforcement statistics. There are two broad issues that contractors can focus on that will provide some direction in their hiring program.
The final rule for defining an Internet applicant went into effect in 2006, yet contractors are still struggling to get those involved, from recruiters to executive level staff, to understand the rules and to successfully blend compliance with successful recruitment. That is not to suggest that people are not reading the regulations as defining applicants in the Internet era has been a controversial, and thoroughly debated, topic since its inception. I think it’s more of a case where hiring staff continues to feel burdened by regulations in a world of rapidly changing technology and people struggle to apply the rule into the infinite number of variations found within hiring. It’s comical that after more than six years in effect, people still have as many questions as answers when it comes to proactive recruitment and recordkeeping requirements. I have been conducting webinars/ related to OFCCP compliance and recordkeeping rules for years and in almost every session, questions about defining applicants dominate the discussion. Today, the problem of recordkeeping is being compounded as recruiters move into the Facebook and LinkedIn space. Within the social media user groups related to compliance, people are posting questions almost daily expressing confusion about managing all those non-vanilla recruiting scenarios and in many cases, the answers are not absolute and they are loaded with “ifs.”
Let’s do a quick review of the four items that must all be in effect for a job seeker to be converted into an applicant. I know people have been reading about the requirements for years, but people continue to struggle with interpretation. Note that a job seeker must pass all four criteria to become an applicant, not just one or two items.
First – The individual submits an expression of interest in employment through the Internet or related electronic data technologies;
Second – The contractor considers the individual for employment in a particular position;
Third – The individual’s expression of interest indicates the individual possesses the basic qualifications for the position; and,
Fourth – The individual at no point in the contractor’s selection process, prior to receiving an offer of employment from the contractor, removes himself or herself from further consideration or otherwise indicates that he or she is no longer interested in the position.
Looking ahead to 2013, we see recruiters going after a much bigger pool of passive and active job seekers that can be found on LinkedIn and Facebook. Hard to blame hiring staff, whose job it is to find the best candidates, for diving into a golden pool of profiles that includes significant detail on just about everyone who has access to a computer. With all the work history and qualifications right at their fingertips, recruiters are unsurprisingly refusing to be locked into limited resume databases of job seekers when their income is based on quantity and quality. At the same time, recruiting within these systems creates a huge challenge for contractors between recordkeeping obligations and the conflict with trying to keep hiring staff from being able to make selections they are supposed to be blind to such as race, gender, and disability status. Knowing that, it is the contractor’s challenge to build the bridge between effective hiring and compliance. At this time, there is little formal guidance and plenty of risk when recruiting in social media. A practical suggestion is to ask those who you trust, network with professionals, and throw in a whole lot of common sense.
With the presidential election behind us, the challenge of adapting will be compounded by the supposition that OFCCP will continue their quest to dramatically enhance the requirements around recordkeeping and outreach. Compliance in 2013 will require that contractors acknowledge the issues that social media creates and then create a plan to protect the organization while still allowing recruiters to find top talent. No problem, right?
When creating a game plan contractors need to be acutely aware of the problems that social media creates such as:
So what should contractors be thinking about headed into 2013? One method for developing a recruiting strategy is to consider risk tolerance and to build a plan around it.
The conservative approach – If the company is risk intolerant, then the plan would be to set firm rules for recruiting and job posting. Companies can severely limit the use of social media by:
The moderate approach – A more flexible program that has limited tolerance for risk would:
The progressive approach – Contractors can choose a more open, and risk tolerant, system that embraces social media and non-traditional recruitment efforts. This would be more of a high-risk, high-reward concept in hiring.
An open format of recruiting adds to the challenge of record keeping because the company is relying on the hiring staff to identify who was interested and considered. The concept of tracking the online profiles that are reviewed by recruiters is a big challenge because there is no regulation stating that an online profile such as a LinkedIn or Facebook account suggests interest on the candidates’ part. One element of the Internet definition of an applicant as posted by OFCCP is that the candidate must submit an expression of interest. Some might argue that having the online profile is in itself an expression of interest, but I do not subscribe to that theory.
It seems reasonable that contractors should talk to an attorney about defining their program (note this recurring theme) so that recruiters may invite people to apply and they will only be considered if they do, and if, in turn, the company has reasonable (diverse) applicant pools that do not solely rely on one method of external recruitment, then the company is behaving reasonably. This is why it requires regular monitoring because if the company does not analyze the results, they may find out that an issue is already embedded in their hiring culture. If OFCCP gets a hold of any data that suggests a gap in the hiring process, then the company cannot undo the damage and a notice of violation and likely conciliation agreement is on its way.
The concept of online recruiting is changing and it’s not a stretch to suggest that paper resumes are on their way out as we continue down the path to an online culture where the battle for privacy is just getting started.
