Most federal contractors are aware that they are required to keep records related to the application and hiring process for up to two years after the record is created or the related personnel action (e.g., the filling of the job) occurs. (Contractors with fewer than 150 employees or a contract of less than $150,000 must only retain such records for one year.) However, some contractors are unaware that the applicable regulations require them to keep all documents related to that process including job postings and advertisements, any interview notes, test and test results, and records of job offers in addition to the job applications themselves. All of these records are subject to review by the OFCCP in the event of a compliance review and, therefore, it is important for contractors to ensure that all documentation they retain is complete and compliant with the law.
Interview notes and other interview-related documentation can be particularly problematic. For instance, contractors may fail to keep all interview notes and other documentation as required. Or they may retain the documentation but find that the interview notes are incomplete or insufficient to determine why a particular candidate was selected or not selected based on the interview. Worse still, the interview documentation retained may contain evidence of discriminatory questions or other inappropriate inquiries or comments. In each of these cases, poor interview documentation can raise red flags for the OFCCP during a compliance review.
While there is no required format for documenting an interview, there are a number of things contractors can do to ensure that their interviewing process and documentation are compliant. These include the following:
- Analyze the job in order to identify the skills and qualifications necessary to perform the job.
- Prepare interview questions in advance and use the same or substantially similar questions during each interview in order to ensure consistency in the information sought and obtained from each interviewee. Using the same or similar questions allows the interviewer to more directly compare the responses from each candidate.
- Avoid discriminatory or otherwise inappropriate questions. Specifically, questions that relate to a person’s race, gender, national origin, religion, age, disability, or any other protected characteristic are not permissible interview questions. Examples of potentially discriminatory questions include the following:
- Where were you born?
- What is your first language?
- What church do you attend?
- Are you married?
- Do you have kids or do you intend to have kids?
- How old are you? OR When did you graduate from high school?
- Have you ever taken a medical leave? OR Have you filed a worker’s compensation claim?
- How many days of work did you miss at your last job because of illness?
- What kinds of extracurricular organizations or activities do you participate in?
- Keep interview questions focused on the skills and qualifications necessary to perform the job.
- Train all interviewers on appropriate and inappropriate interviewing behaviors and documentation.
- Record interview notes in a written document, separate from the candidate’s application or resume. Interviewers should not include any comments or notes on the application or resume itself.
- Keep interview notes factual and objective. Written notes should be professional, non-judgmental, and should be focused on information that is relevant to the job.
- Do not include assumptions, opinions, or personal interpretations of the interviewee’s responses when taking notes.
- Do not document any information that a candidate volunteers regarding his or her protected characteristics. For instance, if a candidate mentions that she is pregnant or is planning to have children soon, this information should not be documented or shared with subsequent interviewers.
- Do not document observations regarding a candidate’s physical characteristics (e.g., blond hair, nice smile, short, etc.). These comments regarding physical appearance may be viewed as discriminatory even if the interviewer intended only to use the notes to refresh his or her recollection.
- Be sure to document the business reason why each candidate is or is not qualified for the job. Include sufficient information to determine why the individual was hired or not hired and how the individual compared to other candidates. Remember, in many cases, an OFCCP compliance review will occur months, if not years, after an interview and, therefore, the interview documentation must be clear and convey enough information for the contractor and the OFCCP to understand the candidate’s skills and qualifications and to compare the candidate to other candidates long after an interviewer’s memory regarding the interview has faded.
- When documenting a conclusion regarding the candidate, avoid any conclusions that implicate or are based on a protected characteristic. Comments like “trouble speaking English,” “not physically able to perform the work,” “old-school thought processes” can be indicative of discrimination and should not be the basis for a hiring decision.
- Retain copies of all final interview notes and documentation, including notes from each interviewer if there were multiple interviewers. Remember, the OFCCP regulations require that all documentation related to the application and hiring process be maintained. Therefore, although it is permissible to convert draft interview notes into final form, all relevant interview information and content must be retained for the applicable record retention period.
By following these tips, you can ensure that your interviewing process and documentation are compliant and better ensure a successful outcome in the event that your hiring documentation is subject to review by the OFCCP.