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Ask The Experts

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.

Recordkeeping requirements

Asked By Anonymous on Dec 12, 2022

I understand the retention period is 3 years for personnel/employment records (i.e. application, hires, interviews, outreach records etc.). Does the 3-year retention period apply to applicant data regardless if the person was hired and a current active employee? Meaning, if candidate was hired in 2002 and still an active employee, can I purge their applicant records i.e. original job application, resume because it’s older than 3 years? Or does the 3-year rule only apply to those that were not hired or were hired but no longer employed? Alternatively, are job applications required to be kept if the candidate is employed and hired more than the 3-year retention period?

Any answer not posted yet.

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Record Keeping and Retention

Asked By Anonymous on Dec 07, 2022

Our records retention policy requires us to destroy recruitment records after 3 years. Do you have any advice for system administrators who oversee applicant tracking systems on how to manage this?
We are hesitant to get rid of the applicant data and metrics if we don’t have to and wanted to see if you’ve encountered this issue.

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Offer different from posting?

Asked By Anonymous on Oct 28, 2022

I was wondering if you could help us with a possible compliance question.

We posted a role for a position and our hiring manger gave us a salary of 75K, which we put in the post. We went through the candidates and process and have a candidate we want to make an offer to. The hiring manager told me the offer was for 98K. I asked about the 75K and she told me her budget was around 100K and that must have been a mistake.

So, if we make the offer of 98K to this candidate what are our liabilities?

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Internal Preference

Asked By Anonymous on Oct 11, 2022

Are you allowed to have an internal applicant preference?
Example 1
Internal applicant: Asian female
External applicant: Male veteran

Internal applicant: White male
External applicant: Protected class female

Any answer not posted yet.

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Commercial Side of Business OFCCP Compliance

Asked By Anonymous on Oct 11, 2022

Our company is a Federal Contractor with primarily government contracts but the company has begun branching out to the commercial side of business. The commercial side of the business does not have any government contracts at this time. The commercial side does not have its own EIN. Since they are affiliated with us, a federal contractor, would the positions on the commercial side be held to OFCCP compliance standards? Such as, ensuring their positions are posted to state job sites?

Any answer not posted yet.

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AAP Requirements- A Technicality

Asked By Anonymous on Oct 06, 2022


I’m hoping someone might be able to advise on this. I’m trying to find out if there is a date that the 50 employee threshold is based on. For example, when we file the EEO-1 report, it is based on a specific period in time of our choosing in the last quarter of the reporting year. Is there anything like this for the AAP or is it current headcount of when you would file?

We are teetering on the 50 ee threshold. Last year we did not have 50 ees, right now we do. So, when we signed Federal contracts, we didn’t have the 50+ ees that would have required us to have, and certify to having, an AAP. But, now that we have 50+ ees are we supposed to certify?

Second, if we do need an AAP and need to certify- does the 120 days a contractor has to develop an AAP start from the date they meet the requirements for needing an AAP? EX: We didn’t meet the requirements to have one when we signed contracts, but once we hit 50 employees, does the requirement automatically kick in? If yes, how do we handle the deadline for needing to certify on the portal by the end of June? Or is that requirement only for contractors who already have an AAP in place?

Thank you for your assistance!

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Can I have one job posting that may be hired at multiple levels?

Asked By Anonymous on Sep 27, 2022

I want to open a position, and we can accept a staff or senior level to fill my one role. Can I post the job at multiple levels describing the basic qualifications for the lower level and preferred qualifications for the higher level or do I have to post the job as two separate positions knowing I can only fill one?

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Joint Reporting Committee – EEOC/OFCCP

Asked By Anonymous on Sep 16, 2022

Does Circa have any information about the EEOC/OFCCP’s Joint Reporting Committee formation? I’m interested in the rules that either authorize or govern the formation and structure of the joint committee, as well as the privacy/confidentiality rules that apply to the members of the JRC.

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Targeted Self-Identification

Asked By Anonymous on Sep 16, 2022

My company is beginning a self-identification campaign and my manager wants to send targeted emails to individuals who do not respond or disclose. My recommendation is that we do NOT/CAN NOT do such. It could be invasive and harassing. The self-id process is voluntary and confidential. Any advice. I have recommended that we put the campaign reminder on our intranet for all employees to see as a reminder.

Answered on Sep 16, 2022

Julia Mendez Achee - Senior Consultant - EEO/Affirmative Action Division, Biddle Consulting Group

I am in agreement with you that sending targeted emails to only a portion of the workforce could be viewed in a negative way especially if these employees learn that not everyone was sent the email. My recommendation is to instead put steps in place to encourage employees to self-identify. If this is a campaign to collect disability information, for example, you might consider utilizing the following resources that the OFCCP has created to assist organizations in educating their staff...

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Do grants constitute a federal contract?

Asked By Anonymous on Aug 26, 2022

We receive grant funding. Are we a federal contractor for the purposes of OFCCP’s website registration and AAP compliance? We do have award in excess of $50k and more than 50 employees.

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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

Angel Fischer

Angel Fischer

Bill Osterndorf

Principal Consultant, DCI Consulting Group, Inc

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

Julia Mendez Achee

Senior Consultant - EEO/Affirmative Action Division, Biddle Consulting Group

Lisa Kaiser, Esq.

Lawyer, The Kaiser Law Group, PLLC

Marilynn L. Schuyler, Esq.

Senior Counsel, Seyfarth Shaw

Matt Nusbaum

Senior Consultant, Director, Biddle Consulting Group, Inc.

Roselle Rogers

Vice President, Diversity, Equity, and Inclusion, Circa

Stephanie Stahr

Senior HR Consultant, Berkshire Associates

William E. Doyle, Jr., Esq.

Former Deputy Director, OFCCP Partner, McGuireWoods LLP

Zoe Ann Whitley

Manager, Consulting Services, Affirmity

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