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Ask the Experts is an exclusive online forum provided by Circa. Federal contractors and subcontractors are invited to submit questions to industry experts related to OFCCP compliance, affirmative action planning, and equal employment opportunity.

OFCCP/AAP Compliance

Asked By Jacquelyn H. on Apr 21, 2021

We post all of our jobs and have a requirement all candidates must electronically apply.
As a federal contractor, we publically post our jobs that are part of a proposal effort and included in the description that they are “contingent upon contract award”. We have been getting candidates that we identify through sourcing that are willing to sign a contingent offer but won’t apply to the job as our internal process is set.
How can we move forward with those candidates but stay compliant in our applicant selection, reporting for EEO/OFCCP, lack of application, interview notes, etc.?

Answered on May 04, 2021

Roselle Rogers - Vice President, Circa

Since you have already indicated in the job posting that this is in anticipation of a contract award, I would suggest adding that only those who have submitted an electronic application will be considered, to encourage them to apply. If that is your established hiring process, I would follow through with that and apply it consistently to avoid issues determining who should be included in your applicant pool for these positions.

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How do we best connect with candidates of diverse backgrounds?

Asked By Anonymous on Apr 20, 2021

How do we reach out to diverse candidates groups in a sincere and genuine way? What are some ways we can source and offer candidates opportunities without sounding like every other company?

Answered on Apr 21, 2021

Roselle Rogers - Vice President, Circa

Thank you for asking this question. When employers undertake outreach, it should not be undertaken simply to “check a box.” While it is a requirement, there are many tangible benefits companies gain from having a diverse workforce. Much research has been done in the area and point to the increased business and financial performance companies with greater diversity enjoy over those which are not diverse. As you work with organizations who can help you, notifying them of your job openings...

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Personnel File

Asked By Anonymous on Apr 14, 2021

Our company is a federal contactor and I am trying to understand our responsibilities regarding record keeping requirements for ’employment application’ that was completed by employees during their non-completive promotional process? For context, some of our internal openings are filled through the competitive selection process where employees will complete an ‘application form’ to be considered for the position and/or sometimes employees may decide to apply for a position that is posted externally and the Company ends up hiring that internal candidate. In terms of what the OFCCP would want and/or expect to see as part on an audit, do we need to keep them (application) in the respective personnel file with the initial application (when the employee was first hired to the company)?

Answered on Apr 19, 2021

Ellen Shong-Bergman - Former Director, OFCCP and Retired President, Ellen Shong & Associates,

For purposes of OFCCP compliance reviews or complaint investigations, ALL completed application forms should be accessible (which means also they must be RETAINED) job by job, not person by person. For other reasons, the contractor may wish to have a copy of an application form, certainly the application for the first position for which the employee was hired, in his or her personnel file. The employer may also want to keep a copy of other applications forms FOR WHICH THE...

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Equity Owners in AAP Plans?

Asked By Anonymous on Apr 13, 2021

Should equity owners/partners (K1 earners) of a business be included in a company’s affirmative action plan(s) or should they be excluded as they are not considered employees?

Answered on Apr 13, 2021

Alissa Horvitz, Esq. - Member Attorney, Roffman Horvitz, PLC

Some S-Corp owners receive W-2 wages in addition to receiving profits as reported on their K-1 tax forms. They are employees as well as owners. True equity partners in a partnership or limited liability partnership typically are not included in AAPs because they are not employees. You might need more specific information on your K-1 earners from your client to determine whether they also are W-2 employees.

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Equal Pay Laws

Asked By Andrew M. on Apr 09, 2021

Are there any states that have equal pay laws similar to that of Massachusetts (https://www.mass.gov/service-details/learn-more-details-about-the-massachusetts-equal-pay-act) and Colorado (https://leg.colorado.gov/bills/sb19-085)?

Answered on Apr 09, 2021

Craig Leen - Board Member, Circa

Yes, there are now many jurisdictions with similar laws, including laws prohibiting asking for prior pay data, requiring salary transparency, and focusing on pay equity data. A few examples are California, New York, Minnesota, Oregon, Washington, and Puerto Rico, although there are others as well. The EEOC is also devoting more attention to pay equity. And, of course, OFCCP has pay equity and pay transparency obligations as well for all federal contractors. It is worth checking in every jurisdiction that...

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Expectations around record keeping for database searches, “good” and “bad” searches

Asked By Anonymous on Apr 05, 2021


We understand as a federal contractor that we have to maintain records of the searches our recruiters do of “external resume databases” like LinkedIn. I’m trying to get more information on what exactly the OFCCP is looking for when reviewing or auditing those search records. What would be considered a “good” search? What search criteria would raise a red flag? We also recognize that some of our recruiters might be using resume databases to conduct “outreach” via search criteria like “veteran/military” or membership in a particular affinity group like black professionals from that field, etc. but I worry about the line between “outreach” and “considering race etc.” when sourcing for candidates. I’d like to provide our recruiters with some “best practices” around what search criteria they do (and don’t) use when sourcing candidates through sites like LinkedIn and would love some guidance.


Answered on Apr 08, 2021

Marilynn L. Schuyler, Esq. - Senior Counsel, Seyfarth Shaw

These are excellent questions. OFCCP is primarily interested in knowing with whom you are posting your positions, as well as the resulting applicant pool. If your applicant pool isn’t diverse, you are unlikely to have diversity in your hiring. Your question is more nuanced, however, as you are asking about search criteria. To the best of my knowledge, OFCCP has not addressed the question you are asking, however, I would not think it would be problematic for recruiters to search...

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Recordkeeping Requirements

Asked By Anonymous on Mar 31, 2021

If a recruiting firm (federal subcontractor) recruits, hires, and employs contract employees to be placed at a client’s location (the client is a federal contractor), which party would be responsible for the recordkeeping obligations?

Answered on Apr 07, 2021

Craig Leen - Board Member, Circa

That's a great question. OFCCP answers it on page 11 of its Supply & Service Technical Assistance Guide. The contractor remains responsible for the recordkeeping obligation. It can be done by the third-party provider on behalf of the contractor but the contractor will ultimately be responsible if the records are not kept by the provider in a readable and accessible form for OFCCP. Here is a link to the guide: https://www.dol.gov/sites/dolgov/files/OFCCP/SupplyService/files/508_sstag_12032020.pdf

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Unsolicited Resume Response

Asked By Theresa W. on Mar 30, 2021

I am seeking the language to use on our website and in our emailed responses that states we do not accept unsolicited resumes; the candidate has to apply directly to an open role. Do you have some samples? Or can you direct me to where I can find acceptable language?

Answered on Apr 05, 2021

Roselle Rogers - Vice President, Circa

As a best practice, employers, especially federal contractor employers, should have an established selection and hiring process, and have this in writing. The process can stipulate that: a) resumes alone will not constitute an application, b) that individuals interested in a position should formally express their interest by submitting an application to that job, and c) that only those who submitted an application will be considered for the position. This will help you manage unsolicited resumes, but also trim down...

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OFCCP guidelines on the timing for conducting a Background Screen for New Hire

Asked By Anonymous on Mar 25, 2021

What are the guidelines from the OFCCP related to when an employer should conduct a background screen? We have been doing this post-offer, when the candidate accepts the offer and as part of our onboarding process.

Answered on Apr 05, 2021

Roselle Rogers - Vice President, Circa

In 2013, OFCCP issued Directive 2013-02 to provide guidance and best practices to federal contractors and subcontractors when it comes to criminal background checks. The U.S. Equal Employment Opportunity Commission, the federal agency that administers and enforces Title VII of the Civil Rights Act of 1964, also issued a comprehensive Enforcement Guidance on the use of arrest and conviction records in employment decisions. In considering the timing of background checks, employers should take into account their state ban-the-box laws which...

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OFCCP record keeping requirements vs Privacy rights

Asked By Rachael D. on Mar 19, 2021


As a Federal Contractor we know we need to maintain data and records for our applicants for AAP reports etc. However, what is our responsibility if a candidate reaches out and asks that we remove all of their applicant data (name, resume etc.) from our Applicant Tracking System? Are there Privacy laws we need to be aware of complying with if a candidate asks for their record to be completely expunged from our system? And which takes priority – our record keeping requirements or the applicants privacy rights?

Answered on Mar 23, 2021

Roselle Rogers - Vice President, Circa

Employers are running into these questions because non-U.S. applicants that are covered by more restrictive EU privacy laws (GDPR) make these types of requests now and again of American organizations. Even if the person requesting is from the United States, to our knowledge there is no state privacy law that would supersede the OFCCP’s record keeping regulations, which are federal law. The California Consumer Privacy Act (CCPA), for example, states that a business will not be required to comply with...

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This forum provides information of a general nature. None of the answers or information provided is intended as legal advice or opinion relative to specific matters, facts, situations, or issues. Additional facts and information or future developments may affect the subjects addressed. You should consult with an attorney about your specific circumstance before acting on any of this information since it may not be applicable to your situation. Circa and all experts expressly disclaim all liability with respect to actions taken or not taken based on any or all of the contents of this forum.

Our Experts

Comprised of former OFCCP directors and respected thought leaders in OFCCP compliance, affirmative action, and EEO.

Ahmed Younies

President and CEO, HR Unlimited, Inc.

Alissa Horvitz, Esq.

Member Attorney, Roffman Horvitz, PLC

Allen Hudson, PHR, SHRM-CP

CEO, HudsonMann

Beth Ronnenburg, SPHR, SHRM-SCP

President, Berkshire Associates

Bill Osterndorf

President and Founder, HR Analytical Services

Carey Freitag

Human Resources Manager, Circa

Carla Irwin, Esq.

President, Carla Irwin & Associates, Inc.

Craig Leen

Board Member, Circa

David Cohen

President and Founder, DCI Consulting

Ellen Shong-Bergman

Former Director, OFCCP and Retired President, Ellen Shong & Associates,

Josh Roffman, Esq.

Managing Attorney, Roffman Horvitz, PLC

Lisa Kaiser, Esq.

Managing Partner, The Kaiser Law Group, PLLC

Marilynn L. Schuyler, Esq.

Senior Counsel, Seyfarth Shaw

Matt Nusbaum

Senior Consultant, Director, Biddle Consulting Group, Inc.

William E. Doyle, Jr., Esq.

Former Deputy Director, OFCCP Partner, McGuireWoods LLP

Zoe Ann Whitley

Manager, Consulting Services, Affirmity

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