Talent Sourcing and OFCCP Guidelines


The hiring process today is a minefield of laws, regulations and ever-changing legal challenges. Failing to comply can have a wide range of consequences; none of them desirable, and many very expensive.

OFCCP’s “Internet Applicant Rule” defines when a job seeker actually becomes an applicant and, hence, is subject to reporting under an employer’s applicant flow summary in the context of Internet recruiting.

Modern recruiters search their company’s databases of resumes, and reach out to the Internet to find candidates. They use the tools they have at hand, be it Google or Bing Internet search engines, as well as specialty tools such as LinkedIn Recruiter or proprietary job board database search tools. Whatever the technology, there is one objective – finding a pool of the best talent so that every hiring decision can actually be a decision, rather than merely accepting one of a few candidates who apply.Talent Sourcing

Building on recruiters’ need for targeted searches, make sure your sourcing solution offers a single interface that searches a wide variety of databases, from the open web to proprietary databases where a company has purchased user subscriptions. Using more data sources gains clear benefits in terms of finding the best candidates, but also helps deal with the legal oversight issues around the search and sourcing process.

In many ways the Internet Applicant Rule is very simple. Under the rule, a person becomes an applicant if they (1) express interest in a job through an electronic medium, (2) are considered for a particular position, (3) have the basic qualifications required for the position, and (4) do not withdraw from consideration. Most, and certainly all mainstream, applicant tracking systems have in place tracking and auditing to comply with the Internet Applicant Rule for job seekers applying for a job through the company’s talent portal. This matches the OFCCP’s historical view that most hires come from job seekers who are actively seeking a job, and who apply for one which interests them.

While, at some stage all hires became active job applicants, in today’s recruiting world many, and in many recruiters’ eyes, the best candidates are “passive.” They will not actually have applied for a posted job, and may not even be aware of the employer seeking to fill a position. As these candidates do not fit the definition of the Internet Applicant Rule per se, they are not applicants under that rule, and therefore are only subject to the more limited record keeping obligations OFCCP has set with respect to passive candidates.

Your sourcing solution should automatically record the required information so an employer can comply with its OFCCP guidelines. In addition, when a recruiter finds a potential great fit for a job, encourage the individual to apply for the job through the talent portal.

The candidate is therefore captured by the company’s applicant tracking system, where they become an Internet Applicant and all the required reporting obligations and workflows are maintained by the applicant tracking system. Thus the audit obligations placed on sourcing passive candidates are separated from those existing under the Internet Applicant Rule.

OFCCP for Passive Candidate Sourcing

For passive candidates where recruiters use sourcing solutions, the OFCCP has created record retention requirements for both internal and external databases. Internal databases are records of past applicants to other company jobs, or a listing of current company employees that have been loaded into the sourcing database from the company’s applicant tracking system. External databases are subscriber databases provided by many job boards and databases created by scraping the Internet, etc.Download free Diversity report

The OFCCP requirements are, for both internal and external databases, to retain the position for which each search of the database was made and the search criteria used. In addition, for internal databases, retention of each resume added to the database and the date each was added to the database is required. Finally, for external databases, in addition to being required to maintain a record of the date of the search, federal contractors are required to retain resumes of all job seekers who met the basic qualifications for the particular position and were considered by the company.

What makes Talemetry Source & CRM so effective is the fact that it automatically saves to an audit log not only the details of every search made, but the details of every record on which a recruiter took an action, such as reviewing the resume, adding the resume to a list for follow-up, emailing the candidate to suggest the candidate apply for the job, etc. The name of the company’s recruiter who took the action also is attached to each audit record, for easy follow-up if/when questions about “who looked at whom” arise. Audit logs must be retained from 1 to 5 years, depending on the circumstances, and not only can Talemetry Source & CRM do this, but the audit log file may be exported to be retained (and reported from) by the company in its system of choice.

Because the required record keeping is built into Talemetry Source & CRM, using this solution instead of a general Internet search engine to explore candidate availability not only provides better search results and the ability to search subscribed, proprietary databases, it also eliminates the OFCCP compliance risk created by using search technology that does not generate required audit trails. It also avoids the risk of bringing large volumes of passive candidate records into the company’s applicant tracking system, and then needing to comply with the more onerous requirements that system manages.

In summary, the Talemetry Source & CRM solution provides an employer with a centralized product to search and review passive candidates in an OFCCP compliant manner. Not having such a product in place for one of the most common and important parts of a recruiter’s job means an employer is not considering the broadest range of candidates for open positions, and is limiting its ability to hire the best candidate for a job. It also means the employer is making its recruiters learn and use multiple sources and systems to search passive candidates. Finally, and most importantly, it is creating more questions about how the employer is meeting its OFCCP obligations, and opening the door to more likely challenges if an audit takes place. 


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