1. 2012 IAEWS Winter-Spring Webinar Series Sponsored by StartWire
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2012 IAEWS
Winter-Spring Webinar Series
Sponsored by StartWire
Improving Operations and the Bottom Line

2. Sign Up: Director@EmploymentWebSites.org
The Topics
Auditors Gone Wild March 6
It’s Not Your Grandmother’s Job Posting March 20
The Legion of Super Job Boards April 10
What Job Board Users Want April 24
Job Search & ‘The Black Hole’ May 8
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3. Ted Daywalt CEO & President, VetJobs President at TAMB Associates
Retired Captain, USN
Executive in utility, steel and biomedical waste
Board of Governors, IAEWS

4. AUDITORS GONE WILD DOJ & OFCCP Concerns for Job Boards
Ted Daywalt

5. What We Will Cover OFCCP Threat sources from DOL & DOJ
Recent regulatory issues regarding job boards

6. Disclaimer
I am not a lawyer. The purpose of this presentation is to inform you about trends and provide ideas for discussion based on what I and others have seen happen in the market place. The information presented should not taken to be legal advice. You should consult an attorney competent in labor law for legal questions before acting on anything discussed today.

7. Department of Labor - OFCCP
Office of Federal Contract Compliance Program
OFCCP handles the enforcement of equal employment and affirmative action laws affecting applicants seeking employment with the U.S. government or a government subcontractor
Discrimination based on sex, race, color, religion, national origin and/or disability is prohibited
If discrimination is found to occur, violator can be fined, ordered to submit back-wages and/or incur other severe penalties
Rules apply to any sub-contractor regardless of size
Rules apply to candidates sourced from any recruiting source

8. Internet Applicants (IA)
Individuals are considered to be IAs if they fit the following criteria:
Express explicit interest in the position through online channels
Are considered by the hiring manager
Meet the basic qualifications for the position
Do not decide to remove themselves from the pool of candidates prior to any job offers

9. IA Complaints
Employers have to keep a record on the IA until the IA decides to no longer be a candidate!
If a candidate feels they have been wrongfully denied a position based on any of the EEO criteria they are within their rights to file a complaint with the OFCCP against the employer and possibly against the job board!

10. OFCCP Mandate
OFCCP by statute has only one mandate - to ensure fair and equal employment opportunities and to eliminate discrimination.
OFCCP mandate is not to ensure that a company makes a great hire. "Quality of hire" or “hiring for skills” is not part of DOL’s lexicon.

11. OFCCP Staff Quadrupled staff over last four years
2012 budgeted to add 3,200 more auditors!

12. Record Keeping Requirements
Under 41 CFR , OFCCP compliance is the exclusive responsibility of the employer, NOT the job board
Companies are responsible for all record requirements
Companies must maintain continuous records of hiring activities for varying amounts of time depending on the company size or government contract amount
1 Year: <50 employees/contract under $150,000
2 Years: >50 employees/contract over $150,000

13. Warning to Job Boards
Do not claim that you provide OFCCP compliance, only compliance support

14. Record Keeping Requirements
Companies must track candidates interested in their job openings, but ONLY if the candidate is considered
Outreach to any sourced candidates must be tracked
By statute, resumes that are pulled offline need to have the following data points tracked and recorded:
Associated search terms used to find the candidate (search string)
Tracking of all applicable resumes considered in a search
When the actual search was performed
When the resume was added

15. Warning to Job Boards
Do not be surprised if two year rule is expanded to 5 years!
Implications for your storage requirements

16. Job Board Resume Databases
Companies and their ntractors have several options for retaining copies of resumes identified through large external databases, without having the database company maintain copies of resumes on their behalf. For example, the contractor could:
(1) use data management techniques to substantially reduce the pool of resumes meeting basic qualifications that are considered, and download the manageable number of resumes into the contractor's internal resume database;
(2) review resumes in the database to identify those meeting basic qualifications for a position and download those resumes into the contractor's internal resume database; or
(3) review resumes in the database to identify those indicating an interest in the particular position the contractor is seeking to fill and invite those job seekers to submit their own resume directly to the contractor's internal resume database if the individual is interested in applying for the position.

17. 2012 OFCCP Emphasis
OFCCP will focus more on veterans and disability issues. Formerly focused on women and minorities.

18. OFCCP v. UPMC Braddock, ARB Case No. 08-048 (May 29, 2009)
Department of Labor Administration Review Board (ARB) issued a ruling that hospitals contracting with an HMO to provide medical services to federal employees are to be considered “subcontractors” even when the subcontract does not have written EEO and Affirmative Action provisions and in spite of the fact that none of the three hospitals held a federal contract!

19. Change with new DOL
GFA vs GFE

20. GFE Traditionally, “GFEs” concentrated on minorities and females
The current “GFE” focus is on veterans and the disabled

21. GFE Type Assessments Too few applicants for the number of hires
Too many applicants for the number of hires
Troubling disparities in selection rates with little, or no, or inadequate data to explain

22. OFCCP Dichotomy
Information provided by OFCCP trainers and instructors Versus Actions by OFCCP auditors in the field

23. Statute versus Reality
DOL reinterpreted OFCCP to cast larger net
Have data available immediately during audit
Repeat audits
Auditors asking for screen shots of jobs posted on job boards

24. Statute versus Reality
Auditors want proof of who did a resume search
Auditors want proof of what a resume looked like at the time of the search
Auditors want proof that your job board received a job and/or batch and the job was posted
Auditors asking for proof that a company posted to your site, generally wanting a copy of the contract/posting agreement

25. Audacity
Conversation with NYC OFCCP

26. Threat to job boards Possible law suits from customers
Job boards may become subject to audits

27. DOJ - Citizenship Requirements
DOJ directs that employer job postings avoid the following language:
"Only U.S. Citizens"
"Citizenship requirement"*
"Only U.S. Citizens or Green Card Holders"
"H-1Bs Only"
"Must have a U.S. Passport"
"Must have a green card"
*UNLESS U.S. citizenship is required by law, regulation, executive order, or government contract.

28. Warning to Job Boards
Do not have fields asking for race, color, immigration status or citizenship status

29. DOs for Internet Job Boards
Require employers, recruiters, and others posting employment ads to sign a membership agreement or client contract that require compliance with all applicable equal employment opportunity laws, including the anti-discrimination provision of the Immigration and Naturalization Act, and:
Prohibit any posting that requires U.S. citizenship or lawful permanent residence in the U.S. as a condition of employment, unless otherwise required in order to comply with law, regulation, executive order, or government contract.
Prohibit any job requirement or criterion in connection with a job posting that discriminates on the basis of citizenship status or national origin.

30. DOs for Internet Job Boards
Do create a link for employers posting directly on the website that outlines prohibited employment practices and the link to employers prior to permitting a job posting on the site (DOJ)
Do send employers an each time the employer posts mass job announcements via file transfer protocol (FTP) that includes a link to the prohibited job postings link mentioned above. (DOJ)

31. DOs for Internet Job Boards
Do create an Equal Employment Opportunity page or an Employer Resources page discussing EEO issues and prohibited job postings. For further reference, these pages can link to the website of the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) at

32. DOs for Internet Job Boards
Do monitor employers’ postings and pull ads that use prohibited discriminatory language or criteria.

33. DOs for Internet Job Boards
Develop a system to deliver customer jobs to state job board sites
Develop a system to customer jobs to workforce centers to include DOL employment representatives, Veteran representatives (LVER & DVOP)

34. DOs for Internet Job Boards
Recent case – job board had a job posted by an employer that stated “U.S. citizenship required”
Result: $25,000 assessment levied on the employer
Job board says DOJ was gestapo like in business
Job board subjected to threatening tactics and possible assessment
DOJ contacted company AND the job board and told them they were guilty of immigration discrimination. Even after company made changes DOJ still went after an assessment form both
Accused job board operator of having committed immigration discrimination for having question “Are you eligible to work in US?”
Since the settlement, the job board reviews every job going on the site and has refused some postings

35. Soon to Come
DOL proposal that all companies have a minimum of 7% employees be disabled

36. Conclusions
Attitude of DOL & DOJ towards private industry is punishment
Social re-engineering drives many of the decisions

37. References Department of Labor www.dol.gov/ofccp Department of Justice

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