EEO and OFCCP Compliance for Recruiters: What to Know and Do

Recruiters have enough on their plates without having to learn the ins and outs of complex compliance laws. You might think that job boards and your recruiting technology will take care of those pesky regulations for you but, ultimately, it is the employer’s responsibility to ensure that all hiring practices are compliant.

Also, while most applicant tracking systems will support EEO/OFCCP compliance for applicants, that word has a specific definition in law. You will have other types of candidates landing in your ATS who may or may not meet the regulatory definition. So, there may be some extra things you have to do to stay on the right side of the law.

Before we dive into the details, let’s explain those crucial definitions that set the stage for everything to come. The word ‘applicant’ carries so much legal weight—do you truly know who qualifies?

Recruiters often use the words ‘applicant’ and ‘candidate’ interchangeably, but there’s a difference between them:

Applicant: A person who has expressed an interest in a job, has the minimum qualifications, and has been presented with and completed an application process. An applicant will be tied to a specific requisition in your ATS.

Internet Applicant: A person who meets all four of the following criteria:

• The individual submitted an expression of interest in employment through the Internet or related technologies.

• The employer considered the individual for employment in a particular position.

• The individual’s expression of interest indicates the individual possesses the basic qualifications for the position.

• The individual has not removed themselves from further consideration or otherwise indicated that they are no longer interested in the position.

Candidate: A person who has been identified as being of interest for a particular position. They do not need to have expressed an interest, be qualified, or have applied. As such, the word ‘candidate’ covers a vast pool of potential talent, from someone who previously submitted a resume to someone who has simply interacted with your website or social media. They are simply leads who could become applicants if you converted them. Candidate is not a legally defined term.

It matters because all applicants are candidates, but not all candidates are applicants. This may seem like semantics, but understanding the legal distinction between the two is critical when it comes to what the law says you need to do.

Foundationally, it’s important to recognize that the people applying for your jobs do not know there is a difference, nor why companies need to ensure that applicants are treated in such a way to align with legal requirements.

Much of the confusion comes from the “Apply Now” button on Indeed and other job boards. Candidates think that by hitting the “Apply Now” button they have become an applicant, because they “applied”, but that’s not always the case. If the candidate does not meet the minimum qualifications for the job or they don’t complete your (not the job board’s) standard procedures for submitting applications, then they are still just a candidate.

That’s important because when it comes to OFCCP compliance, traditional ATSs automatically survey “applicants” who arrive via a careers page or (possibly) a job board. However, recruiters that circumvent this process, including the demographic surveys, leave a dangerous gap in accounting for candidates who never formally “apply” by the legal definition of the word. These candidates may be sourced, referred or agency prospects that you have in your network, or they might arrive through a click on a job site. If you interview and/or hire them without putting all considered candidates through an application with all the relevant OFCCP questions, that’s a problem. The fundamental point of these surveys is to understand if a company’s hiring practices are inclusive, which can be determined only if all qualified candidates complete the survey to become applicants. 

Now that we have set the scene, let’s give you a quick checklist to ensure EEO/OFCCP compliance in your recruiting process.

EEO or Equal Employment Opportunity is a principle that all employers should treat applicants and employees fairly, regardless of their race, color, religion, sex (including gender identity, sexual orientation, and pregnancy conditions), national origin, age, disability or genetic information.

This umbrella of workplace protection includes various federal laws such as Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Americans with Disabilities Act, to name a few. It’s enforced by the Equal Employment Opportunity Commission (EEOC).

Why should you care?

EEO exists to ensure fair, equitable, and inclusive hiring practices that eliminate biases against protected classes. It’s about ensuring non-discriminatory outcomes in your employee base. An individual can sue your company if they feel they have been discriminated against.

Who must comply?

Private companies and state and local government employers with 15 or more employees, as well as federal agencies, must comply with EEO laws. You’ll need to submit an EEO-1 report if you employ 100 or more employees.

How do you make your recruiting process compliant?

While you DO NOT have to ask EEO during the application process, you will still have to ask every employee as part of the hiring process. If you fall under OFCCP, you will have to ask EEO questions of every applicant. 

There are a handful of general best practices you should follow regardless of when you collect the demographic information:

• Proactively diversify your talent pool and take corrective action if necessary.

• Ask every applicant the same questions the same way.

• Remember to gather EEO data after training or other changes in job classification that might create selection disparities.

• File EEO reports annually.

If you ask EEO survey questions at the application stage there are some best practices you should follow:

• Separate ‘qualifying’ questions from your EEO data collection—it’s a best practice to ensure you do not conflate the two.

• Either make the questions optional or provide a ‘choose not to disclose’ option.

If you choose to wait to ask the questions, there are still some best practices to adopt at the recruiting stage that will help ensure unbiased outcomes in your employee base:

• Use observation if employees don’t volunteer EEO information—answering is voluntary, but asking is not.

• Ensure you have gathered the required EEO data after an offer is extended and prior to employment.

The Office of Federal Contract Compliance Programs is part of the EEOC. It holds those who do business with the federal government (contractors and subcontractors) responsible for providing equal employment opportunities and using affirmative action to employ and advance workers in a non-discriminatory manner on the basis of race, color, sex, sexual orientation, gender identity, religion, national origin, disability, or status as a protected veteran.

Why should you care?

While EEOC focuses on anti-discrimination in the employee base, OFCCP promotes diversity in hiring practices. Contractors that are not compliant can be audited, sued, and lose their government contracts, this includes access to Medicare and Medicaid payments. You need to take this seriously!

If you’re investigated, the OFCCP will ask you to demonstrate that you have both attempted to diversify your applicant pool and prove that you have not discriminated against “applicants” seeking a job at your company.

Who must comply?

Only employers who meet certain thresholds are considered federal contractors and are required to adhere to the OFCCP procedures. Construction contractors have special requirements that differ from service providers. The Department of Labor has published extensive resources to help contractors understand their requirements.

How do you make your recruiting process compliant?

As an employer, you MUST ask for OFCCP data during the application process, so the distinction between a candidate and an applicant is critical. You MUST NOT recruit candidates, whether they are leads, ‘Apply Nows’, or sourced candidates, until they have been through a full application process and OFCCP questionnaire. To ensure that happens: 

• Put an equality statement on all job postings.

• Consider ALL recruitment channels when thinking about OFCCP.

• Ask OFCCP questions as early as possible in the hiring process—do not wait until you are ready to hire them to have a candidate complete an application and OFCCP questionnaire.

• Ask every applicant all the same questions the same way.

• Separate ‘qualifying’ questions from your OFCCP data collection—it’s a best practice to ensure that you do not conflate the two.

• Make your online application process accessible to individuals with disabilities.

• If you are within OFCCP, collect the EEO data at the same time.

These tips relate specifically to your recruiting practices. Obviously, there will be more general things your company needs to do, such as training your staff in anti-discrimination practices and creating an internal audit and reporting system for tracking policy compliance.

Fundamentally though, the key to staying out of trouble is to ensure your data can withstand scrutiny. If your technology can pull your OFCCP form and data capture directly from the ATS and emulate them natively on the job board application for candidates, you’ll get a singular source of truth for all your data. The question of who an “applicant” is becomes clear, and you reduce your liability.

That’s why JobSync is here—to help you minimize risk. With compliance built-in for EEO and OFCCP (as well as GDPR, CCPA, and TCPA), you can trust JobSync to connect and optimize all the systems and platforms you use so nothing falls between the cracks. You’ll get fully complete, qualified, and compliant applications working inside your systems, so you can make better hires, faster. Want a demo? Get in touch with us today!