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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.

Record Retention

Asked By Michelle H. on Aug 21, 2018

How long do you need to keep records of those applicants that did not show for a drug test or those applicants that failed a drug test and/or background check?

Answered on Aug 21, 2018

David Cohen - President and Founder, DCI Consulting

60-1.12 - Any personnel or employment record made or kept by the contractor shall be preserved by the contractor for a period of not less than two years from the date of the making of the record or the personnel action involved, whichever occurs later. However, if the contractor has fewer than 150 employees or does not have a Government contract of at least $150,000, the minimum record retention period shall be one year from the date of the making...

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Demographic Data Collection

Asked By Lisa G. on Aug 21, 2018

As a federal contractor, we are required to collect data from applicants and employees in regard to their race/ethnicity, gender, disability and veteran status. While applicants and employees have the right not to disclose their demographic information, we as an employer, are required to collect and report. This has caused some problems for us an employer when it comes to submissions of reports with missing data. What advice do you give in regards to increase applicant/employee response participation? We have tried educational campaigns but that hasn’t made resulted in a huge percentage increase and we do not feel comfortable doing a visual identification (still can’t wrap my head around that). Also at what point do inquiries/requests to update their information cross the line when it comes to the General Data Protection Regulation (GDPR)? Thanks in advance for any advice you can provide.

Answered on Aug 22, 2018

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

You mention that you have tried educational campaigns with your employees. I recommend the following video to my clients, as it is short, provocative, and to the point: I also recommend asking all employees, once a year, to verify that all personnel info, including demographic info, is up-to-date. While we can't require them to self-ID, we can require them to review their record. When it comes to applicants, OFCCP only asks that we do our best to obtain the...

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Co-Ed Housing

Asked By Anonymous on Aug 24, 2018

We have overseas deploying contracts where personnel are housed in off-base villas/apartments. We have looked up law to local areas regarding cohabitation, and understanding some countries do not allow males and females to be housed together if not married.

As a company, are we required to secure housing for both males and females (even if it will not be utilized the entire time of lease) due to the makeup of the team. In other words, do we need to have additional apartment/villa rented to ensure there is separate housing for males and female in the event the team deployed will be comprised of both males and females. Personnel change approximately every 90 days, but the lease is a minimum of six months.

Answered on Sep 04, 2018

Lisa Kaiser, Esq. - Lawyer, The Kaiser Law Group, PLLC

This is a bit out of my area of practice, but I expect that it would depend on the host country laws and any applicable contracts.

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Walk-in applicants

Asked By Alisha S. on Aug 31, 2018

We currently take online applications only. So, we provide a card to people who inquire about jobs, with our web address for them to apply. Managers within the company have requested a solution for applicants who walk into our office to be considered while there on the spot. As we look to build a plan for handling this request, what do we need to be aware of with regards to OFCCP? I had always been told it was best to be consistent, if using online applications, do that exclusively, but I don’t know if there is more flexibility than I know of?

Answered on Sep 04, 2018

Lisa Kaiser, Esq. - Lawyer, The Kaiser Law Group, PLLC

Hi Alisha, You are correct in that it is best to be consistent. If walk-in applicants are considered "on the spot," then it appears they may have preference and could lead to concerns by OFCCP, or at least a closer look. However, if there is a legitimate business need to hire people quickly, it can be done, but I recommend the company proceed carefully. Ensure that there is a process. How the company develops the hiring process is dependent on...

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Federal Contractor Requirements

Asked By Pamela C. on Sep 06, 2018

I have several questions.

1. If a job is posted on the company website and the state board. Then the posting is closed for whatever reason (a candidate was hired; the position was closed temporarily; whatever) and then the hiring manager wants to re-open the job does it then become a new posting requiring it to be posted on the state job board?

2. If a job is posted open on the company website and the state board of a particular state but the hiring manager then finds a candidate he likes and tells them to apply, but will now be home based at a different office in a different state, does that job need to be posted in the state where it will actually be based? Such as, a job posted in Georgia, but the person they like lives in Florida and will be home based in Orlando rather than Atlanta.

3. If the OFCCP were to audit a company, do they expect to see the job posting requisition, verification the position was posted on the state board and when/why is was closed?

4. I have always heard that the OFCCP strongly discourages applicants to be manually forwarded from one job posting to another; that it is strongly recommended the applicant applies to each position they are interested in or being hired for? Can you comment on the practice of a company forwarding applicants from one position to another or from a closed position to an open position?

Answered on Sep 15, 2018

Lisa Kaiser, Esq. - Lawyer, The Kaiser Law Group, PLLC

Hi Pamela, 1. Although arguably no in certain situations, the best practice would be to post the job again with the state employment service. This would ensure compliance in this area in case of an audit versus having to debate the circumstances of reopening the posting. 2. The scenario described above is not a recommended practice and would likely lead to concerns by the agency in an audit. However, for remote or variable (telework) locations, according to the OFCCP's FAQs,...

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EEOC Compliance for Applicants

Asked By Becky J. on Sep 07, 2018

We recently updated our Applicant Tracking System to require applicants to provide Race/Ethnicity and Gender information. We were wondering if you could share with us what information we are required to be collecting (or asking) from our applicants when they apply to jobs on our corporate website. In addition, when are we supposed to provide collected applicant data and to whom?

Answered on Sep 15, 2018

Lisa Kaiser, Esq. - Lawyer, The Kaiser Law Group, PLLC

Hi Becky, It depends on whether your company is a federal contractor or not. To comply with the laws and regulations enforced by the OFCCP, the company must solicit race, ethnicity, sex, veterans status, and disability status during the application process if the company is a federal contractor or subcontractor. A company cannot require an applicant to provide this data. Annually, the company must submit a VETS 4212 report ( and the EEO-1 report ( VETS 4212: VEVRAA requires Federal...

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Dispositioning Candidates

Asked By Janet F. on Sep 14, 2018

Spectra Tech, Inc. is a Nuclear, Environmental, and Engineering company and a Department of Energy (DOE) contractor. We have contracts with the various DOE facilities in Oak Ridge, TN. When they have open positions, they send out requests to us as well as many other DOE contractors. I submit qualified candidates resumes to them based on the job description. If they are interested in one of our candidates, I schedule an interview and if selected, proceed with hiring that candidate as a Spectra Tech employee working at their DOE facility site. Only if they hire our candidate do I know the status of filling their position. If they don’t select our candidate, they don’t let us know who was selected from another company. Are we still responsible for tracking/recording the candidates that aren’t hired and dispositioning them?

Answered on Sep 15, 2018

Lisa Kaiser, Esq. - Lawyer, The Kaiser Law Group, PLLC

Hi Janet, I'm not sure exactly from the facts in your questions how things are set up at your company, but I hope this helps. Your company should track information on its selection process for these candidates described above in order to fulfill its federal contracting obligations. What is the pool of candidates the company selects from in order to send an individual to the hiring authority and why were some not selected to be sent? It should be relatively...

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Applicant – Inactive Posting

Asked By Everett L. on Oct 08, 2018


We have a situation where we are attempting to hire an old applicant that applied for a position back in January. The job posting is currently inactive and we were wondering what was the best course of action moving forward. Should we disposition the candidate and have him apply to a more recent posting?

Thanks and I look forward to hearing from you!

Answered on Oct 08, 2018

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

I would not reactivate the old job posting, Everett, and would disposition this individual as not selected for whatever the reason was for that particular opportunity. I'm not a fan of "sham" postings and they really are a waste of everyone's time, particularly those new/additional job seekers who apply thinking they actually have a shot at the opportunity. However, I know these things happen and IT IS PERFECTLY LEGAL TO RECRUIT/INVITE particular individuals to apply for any posted opportunity. "Best...

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Writing Samples for Applicants

Asked By Anonymous on Oct 03, 2018

We currently have a communications position open and the hiring manager would like to review writing samples of applicants. I know that we can’t score or grade a writing sample without it being validated, as this would be considered a test. However, would it be appropriate to utilize a writing sample as part of the behavioral interview screening. There would be no scoring or right/wrong answer.

For example:
1) Have the applicant bring a writing sample with them to the interview.
2) Hiring managers asks questions of candidates as to why they structured the writing the way they did?

*** Why did they choose a specific word choice?
*** How did the audience impact their decisions in how to structure the document?
*** How did they work with internal business leaders to understand important information to include?
*** Etc…

Answered on Oct 03, 2018

Lisa Kaiser, Esq. - Lawyer, The Kaiser Law Group, PLLC

Each procedure or step of a hiring process is a "test" in that the applicant must "pass" a certain step in order to move forward in the process. Pursuant to Sec. 60-3.3, (see below) validation is required if the component, in this case reviewing a writing sample, results in adverse impact and there is no nondiscriminatory reason for the impact and there is no reasonable alternative for the component. Validation is not required if there is no adverse impact. In...

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Proper Disposition Code

Asked By Jessie P. on Oct 08, 2018

During the recruitment process we will sometimes leave open a position until the actual hired candidate starts their 1st day of work.

What is best way to disposition those applicants who applied during the time period “after we made a hire but before that hired candidate actually started work”.

We never look at these applicants. Can we utilize “Applicant Not Considered – Late Hire”?


Answered on Oct 09, 2018

Lisa Kaiser, Esq. - Lawyer, The Kaiser Law Group, PLLC

Hi Jessie, Yes, that disposition is fine. It is especially good that this is a rule followed 100%, so the company will be consistent in its application. As with any disposition, best practice is to ensure that everyone using the disposition understands the definition behind it. In an audit, you should be prepared for a question such as, "If no applicants are considered after the decision is made, then what is the purpose of leaving the position open past that...

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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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