Hi Paige, This one is a little complicated to answer without knowing the facts I’m more detail. However, I hope The info below is helpful as a guide. 1. If the individual is an employee of a company that is a federal Contractor or subcontractor, then the company must follow the OFCCP regulations, including ensuring that the proper clauses are a part of the subcontracts. When it is unclear due to the facts whether this language is required, it may ultimately come down to how your company feels about risk if your company and the OFCCP disagree - that is, would the company want to litigate the matter. From the facts above, it is likely that the company would want to include the language. 2. The company is responsible for the AFL and hires (or candidates, if the agency sends a few potential employees from whom to choose). It’s important that the agency use ONLY the hiring criteria given by your company, and not additional criteria. It’s important to request the applicant and hire data so that your company can run the required analyses, to prevent surprises an audit. The regulations state that using a third party agency does not exempt the company from non discrimination obligations, so it’s best to ensure the company understands what’s going on with the data at the hiring agency.
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.