How Big Is Your Checkbook: Government Audits & Fines for Job Boards

1. How Big Is Your Checkbook: Government Audits & Fines for Job Boards Ted Daywalt

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

3. 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 is not meant to be legal advice. You should consult an attorney competent in labor law for legal questions before acting on anything discussed today.

4. 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 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

5. 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

6. 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 violations they are within their rights to file a complaint with the OFCCP against the employer, and possibly against the job board!

7. OFCCP Mandate OFCCP by statute has only one mandate - to ensure fair and equal employment opportunities and to eliminate discrimination. Their 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 vocabulary.

8. Record Keeping Requirements • Under 41 CFR 601.12, 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: <150 employees/contract to $150,000 2 Years: >150 employees/contract over $150,000

9. 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 • Tracking of all applicable resumes considered in a search • When the actual search was performed • When the resume was added

10. Job Board Resume Databases Contractors 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. NOTE: The contractor will need to maintain a record of all job seekers invited to apply for a position through final disposition.

11. Assessments to Date Year Amount 2003 $26,200,000 2007 $51,680,000 2008 $67,510,000 2009 $9,300,000 2011 $400,000,000 ??

12. 2011 OFCCP Emphasis OFCCP will focus more on veterans and disability issues. Formerly focused on women and minorities.

13. 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! OFCCP v. UPMC Braddock, ARB Case No. 08-048 (May 29, 2009)

14. Change with new DOL GFA vs GFE

15. Meeting with Patricia Shiu Formerly an attorney with the Legal Aid Society-Employment Law Center (LAS-ELC) of San Francisco, has been named the new Director of the Office of Federal Contract Compliance Programs (OFCCP). Formerly, Ms. Shiu was the Vice President for Programs and director of the Society’s Work and Family Project at the LAS-ELC. She joined the LAS-ELC in 1983 and is a graduate of the University of San Francisco School of Law.

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

17. 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

18. Statute versus Reality • DOL reinterpreted OFCCP to cast larger net • Have data available immediately during audit • Repeat audits • Screen shots of jobs posted on job boards • Auditors want to know who did the 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 their site, generally a copy of the contract/posting agreement

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

20. 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.

21. DOs for Internet Job Boards Do require employers, recruiters, and others posting employment ads to sign a membership agreement and client contract that require compliance with all applicable equal employment opportunitylaws, 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.

22. DOs for Internet Job Boards • Do create a link for employers posting directly on the website that outlines prohibited employment practices and email the link to employers prior to permitting a job posting on the site • Do send employers an email 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.

23. 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 http://www.justice.gov/crt/about/osc

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

25. DOs for Internet Job Boards Recent case – job board had a job posted by an employer that stated “U.S. citizenship required” Result: $50,000 assessment to the job board!

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

27. References • Department of Labor www.dol.gov/ofccp • Department of Justice www.justice.gov/crt/about/osc/htm/best_practices.php

28. Questions?