My answer depends on whether you are speaking of "minimum qualifications" OTHER THAN THOSE ADVERTISED or if what you really mean is what the OFCCP regulations describe as "basic qualifications"; they are different. The OFCCP’s recordkeeping requirements apply only to those who fall within the regulatory definition of “Internet Applicant”. “Basic qualifications” – also defined in the regulations – is an essential element of that definition. For more information go to the OFCCP website at https://www.dol.gov/agencies/ofccp Under “Laws and Policy” look for Executive Order 11246 regulations (especially “Definitions”) and FAQs regarding "Internet Applicant Recordkeeping" and "Basic Qualifications". You may wish to begin with the FAQs. “Basic qualifications” must be: 1) established in advance of the recruitment, 2) advertised, 3) relevant to performance of the specific job, 4) are objective, and 5) do not involve comparisons with other job seekers, that is those that would be used to determine if a particular job seeker was "more qualified" or “has a degree from a 'better' school". No personality, physical ability or other “test” is ever a “basic qualification”. If, in fact, you chose someone who did not meet the "basic qualifications" you advertised then, yes, you must include in your selection analyses every other job seeker who otherwise meets the definition of “Internet Applicant” (i.e. did not withdraw at any time in the process, either explicitly or implicitly) who is of identifiable race/ethnicity and/or gender, etc. A person's demographic information is deemed "identifiable" ONLY IF YOU HAVE SOLICITED this information. This can be a daunting task because you must now communicate with every such person and ask them to provide you with that information. The “does not meet Basic Qualifications” is a significant “eliminator” from what would OTHERWISE not be an “Internet Applicant”. The contractor is not required to include in a selection analysis (adverse impact or disparate treatment) any job seeker who does not meet “BASIC” qualifications – unless the contractor selected a person who also did not satisfy such advertised requirements. In virtually every circumstance contractors use qualifications in addition to “basic qualifications” in their selection processes. These are permitted. Most employers for at least some jobs, perhaps most, have qualifications that they may internally describe as "minimum” – that is "knock outs” – that do not fall within the OFCCP's regulatory definition of "basic". For example, many employers reject everyone who does not have – in their view – a “satisfactory job history". This may mean "no job hopping", no unexplained periods of unemployment of longer than 3 months, no leaving a job "for a better opportunity" when there's a significant time between the job they "quit" and the "better opportunity", no working for a competitor within the last two years, etc. In my experience these "work history" assessments are typically very subjective, and often vary considerably from job to job. I suppose at least some of these they could be rendered quite "objective" if they were written policy and rigorously adhered to. However, even in the unusual case where an employer advertises that one must have a “satisfactory job history” I've never seen an employer ADVERTISE anything specific enough to be characterized as “objective”. Consequently, while having a “satisfactory” work history may well be so minimum as to be the basis for a go/no go decision, this is not a "basic qualifications" as defined by the regulations. Further, a contractor typically does use “comparisons” among and between Applicants to choose the person(s) it deems “best” or “better” qualified. If you chose someone who did not meet “minimum qualifications” but DID meet “basic qualifications”, your recordkeeping (and concomitant analysis) obligations include all “Internet Applicants” from whom you will have solicited demographic information. If the selectee did not meet your otherwise established “minimum qualifications” AND if the OFCCP investigates selections in that job title you must, of course, be prepared to defend the selection at least as to those applicants who DID meet “minimum qualifications” if not as to all others in the pool. Of course, a better practice is not to select someone who doesn’t meet any advertised qualification, particularly a “basic qualification”. The contractor who does so is very much more vulnerable to an accusation of and perhaps even a finding not of “adverse impact” but “disparate treatment”. No matter the race, ethnicity or gender of the person selected, everyone else who did not meet “basic qualifications” was denied an opportunity for reasons that MIGHT BE unlawfully discriminatory. At the very least, the contractor has conceded that qualifications were not the basis for the selection. That doesn’t mean that all is lost – presumably there WAS some other lawful reason for the selection -- or at least one that was not per se unlawful tho’ it might be professionally embarrassing (e.g. “my boss made me hire her niece”). Be prepared to explain this, ESPECIALLY if there is a statistically significant disparity in the selection rates of ANY race/ethnicity or gender in the analysis of applicants and selections for this job. That should lead to further investigation by the OFCCP and you should expect that “treatment” of “similarly situated” people to be the issue. There is one other possible amelioration of what I assume is an unusual and “after the fact” situation. In their FAQs the OFCCP provides a response that you might find helpful depending on the specific facts of your situation: Q. “ What if after establishing the basic qualifications for a position, fewer applications were received than expected. How can the pool of expressions of interest be broadened? Can the contractor go back and make exceptions to basic qualifications? A. "Contractors may search for basic qualifications serially or in combination. They may search a database for some, but not all, of the basic qualifications and not screen further for the remainder of the basic qualifications. If so, the contractor must solicit demographic data for individuals meeting the subset of "basic qualifications" actually used for screening job seekers, provided the other Internet Applicant criteria are met. A contractor cannot make exceptions to basic qualifications on a case-by-case basis without soliciting demographic information from all job seekers meeting the basic qualifications actually required for anyone to be considered further for the position.” If the individual you selected met SOME of the “basic qualifications”, this might be approached as if you had changed your mind (maybe you did!) – based on the size or quality of the job seekers, perhaps – and decided to ACTUALLY use in this particular selection only some of the “basic qualifications” that you advertised. In that case the “similarly situated” job seekers would be only those that met the basic qualifications you actually used for this specific vacancy. You might thus narrow the population from whom it is required that you solicit race/ethnicity and gender information and also limit any potential liability to that sub-group of Internet Applicants. If this situation applies I strongly urge you to make a record of the BQs you used and why they were different from the norm. Also, if and as necessary, review and revise the disposition codes you attached to each person who was considered for this position -- NOW. If this is a job title for which you have other selections during the AAP year, you must be able to distinguish between this group of applicants/selection and other selections in the same job title for which you used different “basic qualifications”. Make sure you keep that record! OFCCP’s insistence on “aggregation” of data – even by so narrow an e

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