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I would very much like to have had some additional information in your question, but my goal is to cover several different possible scenarios. And I DO ASSUME for all purposes here that your firm is a government contractor subject to OFCCP laws and regulations. If you are not, I’ve got a short answer below – but do read the long one as well; it matters. When it comes to the use of a third party (hereinafter TP), the short answer is ALWAYS that the employer who engages a TP to fill a position is liable for the actions of its “agent” when agent is acting on its behalf. Always. Another way to think of this rule is: “One can delegate authority; one cannot delegate responsibility. With respect to compliance with EEO/AA requirements – including all record keeping and analysis – the employer CANNOT AVOID these obligations simply because it engages a TP to do recruitment/screening and/or selection. NOTE: This is a complicated issue and beyond the scope of this Q&A but I encourage you to research this and to seek legal counsel from an attorney experienced in EEO/AA compliance and, in particular, your contractual arrangements with your Third Party recruiter/staffing organization. You need them to maintain -- and share with you -- the very same records you must keep for the recruiting/screening that you do for yourself. Your situation is a good one in which to “What If?” the occurrence of an OFCCP review or other EEO investigation. What If – especially after you “convert” the Third Party’s employee to your own – it is alleged s/he was discriminatorily denied that position? Would you really expect to be home free by responding: “We didn’t do it, Third Party did it”? It doesn’t work that way and when we think about it, the reason seems obvious. Suppose that the Third Party’s recruitment was non-compliant with its customer’s obligations, and/or it unlawfully discriminated in its screening (of what I assume are “Internet Applicants”) and/or in its referral of candidates. This would mean that the entire process by which your employee was ultimately offered both the first opportunity for a 6-month temp assignment as well as the subsequent opportunity for regular employment was tainted. Third Party’s customer (in this case, your organization) is responsible for the actions of its agent: it was the former's employment opportunity that was/is DENIED to others. And, in my hypothesis, unlawfully and discriminatorily denied. It is precisely because such a thing CAN happen that the EEOC, OFCCP and other enforcement agencies demand that records be kept which will permit investigation of the “selection process” as it really was carried out – by whomever. And it is precisely why the employer cannot “benefit” from the unlawful discrimination of its agent even if it is itself entirely innocent in motivation and, very possibly, ignorant of what its agent had done. With respect to whether/when the position should be/have been closed, that depends on what you did with respect to any job seekers who expressed interest in the position. If no one did – then you made no employment decision and there’s nothing to analyze. If no one expressed interest who met the definition of Internet Applicant then you must maintain such records in accordance with the OFCCP regulations but not include those job seekers in any analysis. If anyone met the definition of Internet Applicant -- i.e., qualifications assessed and rejected – (presumably the reason you went to a TP firm) then all those records (applications/resumes/dispositions/application/interview reviewer notes, etc.) should, in this situation, be moved to the re-opened position and counted/analyzed along with the person who was “converted”. At the time you convert him or her to regular employment OF COURSE the temp has the “most relevant experience”. But that won’t – and should not – fly as a defense if the temp got the assignment in the first place because any other(s) were unlawfully denied it! The compliance investigator won’t even have to break a sweat if s/he stumbles on this. THAT is when you will need those records – and those of the Third Party as well. Records are not only an indictment…often they are salvation! Unfortunately, many employers have records that make it very difficult if not impossible to defend their own, much less their agents’ selection decisions. You’re using a not uncommon sort of disposition code but it is one that won’t be at all helpful if there’s ever a challenge to your selection decisions. It doesn’t convey any specific information on WHY an applicant was rejected and your plan to universally disposition all other job seekers suggests that it’s not accurate for at least some of them, perhaps any. This single code is probably truly inaccurate for at least some job seekers to whom it has been assigned. It certainly isn't accurate -- and may not even be true! -- for any whose applications/resumes you never even read. It's also inaccurate for those (if any) who didn’t meet the “basic qualifications” for the position – as that term is defined by OFCCP regulations. It's also inaccurate for those (if any) who, implicitly, withdrew – e.g., application illegible, job seeker not willing to satisfy the terms and conditions of the job (e.g. shift, OT, travel, security clearance, legal to work in U.S.), etc. When an employer fails to ACCURATELY and CONSISTENTLY record “what really happened” it is very likely to create a statistical disparity that may not actually exist. Moreover, poorly designed disposition codes (or inconsistent usage!) will substantially hamper an employer’s ability to demonstrate that its selection decision(s) were, in fact, lawful, notwithstanding the disproportionate exclusion of some group. There’s a huge difference in the risk – and cost – of defending adverse impact caused by, for example, “No engineering degree” or “qualifications not as represented” or “recent work experience not applicable” than in the risk/cost of defending “other candidates better fit”. “Other candidates more qualified, better fit” is a catch all term – and it does catch ALL. Consequently, it is too vague to permit the required analysis of your employment decisions. There really IS a difference in the employer’s risk for rejecting someone because s/he had less experience or less relevant education or a spotty work record versus “not a good fit”. What does that even mean? Others better qualified WHY? What’s the basis for that conclusion? Did you ever receive an empty email with the statement “This message has no content”? In my experience working with such data in order to (hopefully!) rebut a statistical indication of discrimination such disposition codes are exactly like that: they have no content. In such circumstances my clients have had only two choices: accept the OFCCP’s finding of discrimination and assessment of back pay, or expend very substantial efforts to [attempt to] recall and recreate history so as to figure out that which well-designed disposition codes would have recorded in the first instance. As promised here is the "short answer” if you are not a government contractor. All the record keeping and other legal compliance obligations the employer assumes on behalf of its third-party agent are the same for both government contractors and any employer that is covered by Title VII. That is, both contractors and non-contractors have record keeping obligations and the obligation to determine if any of its selection criteria “adversely impact” any group based on race/national origin and sex. Such obligations for government contractors are, arguably, somewhat easier (because of the "basic qualifications" element of the "Internet Applicant" definition) although it also might be true that contractors are more likely to experience enforcement of these obligations.
You can use this OFCCP audit checklist to ensure you're doing what is required to maintain OFCCP's regulations including VEVRAA, Section 503, and EO 11246. Or request a demo to streamline your compliance and recruiting efforts.