OFCCP Ruling and the Effects on Employer Brand and the Candidate Experience
Future Company ABC Notice to ‘Candidates’:
We want to thank you for your interest in our company and let you know that you MAY or MAY NOT be considered for employment with our corporation. Even if your skills, experience and talents meet our requirements for this position, even though you may have been the employee to come up with the next BIG idea, our next sales superstar, or even our next CEO – we regret to inform you that there is a good chance that we will never even see your resume. We regularly receive such large numbers of online inquiries that based on cost impacts to our business, in order to comply with the government reporting and record retention rules defining an “Internet Applicant,’ we have had no choice but to limit the number of online inquiries that we can consider. Therefore, we now arbitrarily limit how many online applicants we consider for our open positions based on a random sampling of results and with an absolute limit of 50.
Again, thanks for your interest. We may, or may not have been good together – we’ll never know for sure.
* * * * * * * * * *
On Monday morning, as America is coming off of a Super Bowl XL chips and beer stupor, federal contractors and subcontractors will be sobering up to a new set of rules that relate to their online recruitment and hiring practices. 
The Department of Labor, Office of Federal Contract Compliance Programs (OFCCP) issued a ruling in response to the need to maintain equality and fairness in recruiting while accepting internet based job applications from ‘Internet Applicants.’ The new OFCCP ‘Internet Applicant’ definition includes job seekers who submit electronic expressions of interest for jobs and meet certain criteria for open positions. If you need more information on the specifics of the ruling – Monster.com provides a succinct summary and an impressive number of resources regarding the new requirements here.
Most agree that the new ruling potentially imposes an undue burden on business, given that records must be created and retained for ALL online candidates that express interest in a position that 1- meet the basic qualifications for the position and 2- are candidates that the company would ‘consider’. This includes job seekers who respond directly to employers via job board advertisements, as well as job seekers who submit their details to job board resume databases. We think that this issue of ‘consideration’ and how your company chooses to define the process around it is a loophole so big you could drive a truck through it. (If you don’t know what we are talking about read about the ‘consideration’ piece of the rules here.) ** Read: Important if you currently source candidates through resume databases on job boards including Monster, CareerBuilder, and HotJobs**
There is additional interest in this ruling, as most feel that it is a precursor to the EEOC ruling that will affect ALL employers in the coming months. Since we live in the days of Enron, Sarbanes-Oxley, Martha Stewart, and intense corporate scrutiny – it will be interesting to see how many recruiters actually comply with the new regulations, continuing to freely and indiscriminately search for talent through resume databases and search engines – or whether it will be a non-event until some large corporation or recruiter comes under fire for not complying.
If our mock notice to candidates above sounds too far fetched, consider the following. The almighty dollar has been known to drive some pretty significant changes in business practices with results often turning really ugly when ‘well intentioned’ government laws create real life outcomes that are the opposite of the desired state. When a companies very livelihood is at stake, (er, the money), companies logically create survival policies to limit legal risk, control new expenses and in this case, both. What do we have to look forward to if this policy is extended to all employers, not just government contractors? Rising costs, corporate short cuts, restrictive company policies, more red tape, deviant back room decisions or flat out illegal activity in order to survive? We certainly don’t think this direction bodes well for overall job creation. Don’t take our word for it. Look at what has happened to public companies due to Sarbanes-Oxley. To take the big bad government factor out of the equation, lest you think we were making this a political blog, look how skyrocketing health care costs have changed company behavior and practices in order to survive. Both the employers and employees have suffered greatly. That brings us to the central point of our post (phew, you were beginning to get riled up there).
How could this really be good for the Candidate Experience?
We have yet to see anything written discussing the potential impact of the new rules on the job seeker. Online job seekers will readily tell you that the most frustrating part of searching for a job online is submitting a resume and never hearing back from a company one way or the other. According to the rules,
“a contractor may not consider the individual for employment in a particular position by using data management techniques that do not depend on assessment of qualifications, such as random sampling or absolute numerical limits, to reduce the number of expressions of interest to be considered, provided that the sample is appropriate in terms of the pool of those submitting expressions of interest.”
Potentially – no matter how “cream of the crop” a potential candidate may be, job seekers will now be even less likely to receive a response if their resume happens to fall outside of a “random sample” or pre-determined number of online applications that an employer will ‘consider’ for any one position. It is obvious how this might limit a company’s ability to compete in the war for top talent – but what about the effects on external Employer Brand? Will the Employer Brand suffer unintentionally among top talent that never hears back from an employer due to companies having to manage their reporting burden through defining their online “candidate-consideration” processes with practices such as random sampling?
Given the potential financial impact on the job boards caused by companies deciding that they can not afford to utilize resume databases and record and retain all the necessary records, we find it interesting that only Monster appears to be directly addressing the requirements. We have not been able to turn up ’official’ information regarding what Yahoo! HotJobs and CareerBuilder are doing to help their customers comply when using their resume databases, but we are contacting these sites to gain more details in the next week. The huge data management and reporting capabilities necessary to answer to such regulation and compliance issues may become another competitive advantage for the big boards that have the money and infrastructure to do it. Smaller sites and aggregators that want to add resume database functionality to their offerings may not ever be able to match a Monster offering.
While we will wait for the ripples of change in the online job board community – here is a new job board that we coincidentally came across from their virally marketed ‘banned’ Super Bowl ad that is approaching the typical job board model a bit differently in an effort to aid compliance and reduce liability:
QuietAgent.com – This is a new ATS vendor/job board that offers employers ‘Anonymous Candidate Sourcing’ capability through their “mutual-interest” matching tool. QuietAgent.com aims to significantly reduce the liability for employers in managing ‘Internet Applicants’ as defined under the new ruling by offering both a sophisticated new search process, and a short-listing method that reduces an employer’s recordkeeping requirements by only presenting details for only the best, mutually-interested applicants.
According to their site – QuietAgent.com provides an approach that is different from the major job boards. Their approach saves employers from having to manage and record hundreds of applications. Firstly, a job seeker’s résumé data is complemented by a concise set of minimum requirements for jobs, company types, locations, sectors, work types and benefits they require to be met before they would consider an opportunity.
Secondly, QuietAgent.com CEO Jason Kerr explains, “we use a unique ‘let’s find each other’ process between job seekers and employers that ensures that the employer is only returned quality shortlists of job seekers who are both qualified to work in the position on offer, and whose minimum job requirements are met”.
Information that is returned in a search remains anonymous to employers. Candidates must be invited to apply for an open position and unless they accept that invitation, they remain anonymous, blocking any access to their identification. Only if the invitation is accepted is there absolute confirmation that the candidate wishes to be considered for the position, and identifying information is released to that employer. Only at this point are they required to be managed as an ‘Internet Applicant’ under the ruling.
Legal Notice: We are not lawyers. American Employment law is very complicated. This blog post is meant to provide information of a general nature. None of the information contained herein is intended as legal advice or opinion relative to specific matters, facts, situations, or issues. Additional facts or information or future developments may affect the subjects addressed in this document. You should consult with a lawyer about your particular circumstances or any of this information because it may not be applicable to you or your situation.
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