I. INTRODUCTION
There are several federal Equal Employment Opportunity laws that financial institutions are subject to by virtue of being employers. Many, but not all, of these laws are triggered by various thresholds of employment. A listing of these thresholds is contained in an article in the Personnel section in Volume I of the NBA Compliance Handbook under the title of “Employment Thresholds.” The federal laws are either enforced by the U.S. Equal Employment Opportunity Commission (EEOC) or the Office of Federal Contract Compliance Programs (OFCCP), which is a division of the U.S. Department of Labor. This article is concerned with the laws that apply to financial institutions by virtue of being deemed “federal contractors” as opposed to “employers.” The intent of the federal government’s policy is that if an employer does business with the federal government, then the business must comply with equal employment opportunity provisions. The provisions discussed within this article are the responsibility of and enforced by the OFCCP.
II. FEDERAL CONTRACTOR PROVISIONS
A. Executive Order 11246 (1965 and as amended)
Executive Order 11246 and later amendatory orders [11375 (1967) and 11478 (1969)] are applicable to “federal contractors.” A financial institution may be a federal contractor if it serves as a depository of government funds (any amount), is an issuing and paying agent for U.S. savings bonds and notes or lends to an entity to enable it to perform a federal contract. A federal contractor employer with less than 50 employees need not have a written affirmative action plan, but must comply with the Equal Employment Opportunity clause of Executive Order 11246 that provides for non-discrimination on the basis of race, color, religion, sex, sexual orientation, gender identity or national origin in all personnel actions (including hiring, promotion and termination) and provides for the taking of affirmative action with respect to the treatment of such protected classes. A federal contractor employer with 50 or more employees is required to comply with the Equal Employment Opportunity clause of the Executive Order, to take affirmative action and to have a written affirmative action plan and employment goals.
B. Vocational Rehabilitation Act of 1973
This Act prohibits any “federal contractor” (see, definition in Executive Order 11246 above) from discriminating against qualified individuals with disabilities and requires the reasonable accommodation of such persons (protections also extend to persons infected with HIV or Aids; rehabilitated alcoholics; and illegal drug abusers). Federal contractor employers with 50 or more employees must develop written affirmative action plans, but are not required to have employment goals.
C. Vietnam Era Veterans’ Readjustment Assistance Act of 1974
This Act prohibits discrimination against any qualified disabled veteran or any veteran of the Vietnam era and is applicable to any “federal contractor” (see, definition in Executive Order 11246 above). Federal contractor employers with 50 or more employees must develop written affirmative action plans, but are not required to have employment goals.
D. Executive Order 13665
The OFCCP has issued a final rule to Promote Pay Transparency, which implements Executive Order 13665. Executive Order 13665, prohibited federal contractors from retaliating against employees who discuss their compensation. The final rule went into effect on January 11, 2016.
Under the final rule, federal contractors and subcontractors may not fire or otherwise discriminate against employees or applicants for discussing, disclosing, or inquiring about their compensation or that of another employee or applicant. “Compensation” means "any payments made to, or on behalf of, an employee or offered to an applicant as remuneration for employment, including but not limited to salary, wages, overtime pay, shift differentials, bonuses, commissions, vacation and holiday pay, allowances, insurance and other benefits, stock options and awards, profit sharing, and retirement."
The final rule amends Executive Order 11246, and applies to federal contracts and subcontracts “entered into or modified on or after January 11, 2016 that exceed $10,000 in value.” The final rule generally applies to any business or organization that is subject to executive order 1146, including an organization that serves as a depository of federal funds, or is an issuing and paying agency for US savings bonds and notes in any amount. Contractors who enter into new contracts, or who modify, extend, or renew existing contracts after January 11, 2016, are subject to the new rule.
E. Executive Order 13706
Under Executive Order 13706 federal contractors will be required to provide their employees with paid sick leave. Under the Executive Order, all employees working under a federal contract or subcontract must earn at least one hour of paid sick leave for every 30 hours worked. A contractor may not set a limit on the total accrual of paid sick leave per year, at less than 56 hours. The order affects most procurement contracts or contract-like instruments where the solicitation has been issued on or after January 1, 2017.
III. FINANCIAL INSTITUTIONS AS FEDERAL CONTRACTORS
A financial institutions is deemed to be a “Federal Contractor” under the law by virtue of any of the following activities: acting as a depository of government funds; handling U.S. saving bonds and notes as an issuing and paying or transfer agent; holding treasury tax or loan accounts; and having a subcontract with a primary federal contractor that is necessary to the performance of a contract (e.g., a loan to a company that assists the company in its performance of a federal contract). According to statements attributed to OFCCP officials, the OFCCP considers the fact that financial institutions take federally insured deposits is enough of a “hook” to classify a financial institution as a federal contractor
In recent years, the OFCCP has audited numerous financial institutions throughout the country. It appears that some financial institutions do not realize they are a federal contractor with affirmative action obligations until the Office of Federal Contract Compliance Programs (“OFCCP”) sends them an EO-Survey or notice of a compliance check. An entire company may, under rather detailed rules regarding control a parent has over its subsidiary, be considered a federal contractor even if only one subsidiary of the company has a federal contract.
IV. EMPLOYEE NOTIFICATION REQUIREMENTS FOR FEDERAL CONTRACTORS
On May 20, 2010, the Department of Labor (DOL) finalized a regulation requiring federal contractors, including banks, to post a notice advising employees of their rights under the National Labor Relations Act (NLRA) to form, join and assist labor unions. The rule became effective on June 21, 2010. The regulation implements Executive Order 13496 issued by President Obama that requires federal contractors, including banks, to advise employees of their rights under the NLRA.
Applicability to banks. Because the rule broadly defines a “government contract” to include agreements whereby the federal government obtains “fund depository” services, employment law experts believe this rule will apply to banks that have Treasury Tax & Loan accounts with federal government agencies or that provide services related to U.S. savings bonds, or that have other types of government contracts. Accordingly, banks that have provided these services should post this notice on or about June 21, 2010. The notice should be posted where the bank displays its other federal posters, such as for the Fair Labor Standards Act and Title VII.
Electronic posting. Banks who post notices to employees electronically must also post the required notice electronically via a link to the DOL’s Office of Labor-Management Standards’ Web site. When posting electronically, the link to the notice must be placed where the bank customarily places other electronic notices to employees about their jobs, and the link must be at least as prominent as other employee notices. Electronic posting cannot be used as a substitute for physical posting.
Poster content. The rule requires that the poster contain specific language and can be downloaded at www.dol.gov/olms/regs/compliance/EO13496.htm. In addition, neither the size nor color of the poster can be changed. Where a significant portion of the employer’s or subcontractor’s workforce is not proficient in English, the poster must be provided in languages spoken by employees. The DOL will provide translations that can be used to comply with the physical and electronic posting requirements.
Enforcement. The Office of Contract Compliance Programs (OFCCP) will enforce the regulation either separately as part of a compliance evaluation limited to Executive Order 13496 or as part of a broader compliance evaluation of other laws or executive orders enforced by OFCCP. Federal contractors that violate the Department of Labor’s regulation requiring employee notification of their NLRA rights may be subject to sanctions, including suspension or cancellation of the federal contract.
V. E-VERIFY MANDATE FOR FEDERAL CONTRACTORS
Implementation of the Executive Order mandating use of the E-Verify employment verification system became effective on September 8, 2009. The requirement that federal contractors use E-Verify stems from an amendment to Executive Order 12989. There has been much confusion over whether the required use of E-Verify applies to financial institutions that are federal contractors for purposes of affirmative action.
Most of the time financial institutions are considered to be federal contractors – not because they have “federal contracts,” but because they are depositories of federal funds and issuing/paying agents for U.S. savings bonds and notes – activities that make them subject to Executive Order 11246 governing affirmative action and equal employment opportunity. However, banks that are federal contractors only because they are depositories of federal funds or handle U.S. savings bonds and have no other federal contracts are NOT covered by Executive Order 12989 and do not have to comply with E-Verify.
According to the November 14, 2008 Federal Register notice, financial institutions are, in most cases, exempt from the requirement to comply with E-Verify. See: http://edocket.access.gpo.gov/2008/pdf/E8-26904.pdf (page 67683).
5. Financial Institutions
Response: Agreements or activities performed by financial institutions that are not subject to the FAR are not required to comply with the E-Verify provisions and clauses of the FAR.
Based on the Federal Register explanation, most financial institutions will not be required to use E-Verify. The E-Verify program is open to all employers as a voluntary matter and banks may elect to use it at their discretion.
The Executive Order mandating the use of the E-Verify employment verification system impacts contracts in which the prime contract has a period of performance longer than 120 days, possesses a value above $100,000, and contains an E-Verify clause requiring the contractor to use E-Verify as a condition of the contract. Subcontractors may also be subject to the requirement if the subcontract is for services or construction with a value above $3,000 and the prime contract contains the E-Verify clause. Contracts awarded before September 8, 2009, that do not contain the E-Verify clause will not trigger the requirement, except for indefinite delivery/indefinite quantity contracts that are modified on or after September 8, 2009, to include the clause.
If a federal contractor is subject to the E-Verify requirement, there will be a limited amount of time (within 30 days of the contract award date) for the company to register for E-Verify and, once registered, to begin submitting inquiries. Inquiries must be submitted for not only new hires, but also for any existing employee assigned to work directly on the contract, unless the employee is otherwise exempt from the E-Verify verification requirement (such as employees holding certain security clearances) or from the Form I-9 verification process (such as employees hired before November 6, 1986 and continuously employed since such date).
VI. AFFIRMATIVE ACTION PLANS FOR BANKS
Financial institutions with less than 50 employees are not required to develop an annual written Affirmative Action Plan, but are required to comply with the Equal Employment Opportunity provisions contained in Executive Order 11246 which requires that such institutions that are deemed to be federal contractors as defined within the Executive Order must not discriminate, as employers and must take affirmative action in all aspects of employment with respect to the treatment of minorities and women.
Financial institutions with 50 or more employees and that are deemed to be a federal contractor as defined under Executive Order 11246, are required to have an Affirmative Action Plan – essentially three different types of plans that are consolidated into one program for: minorities and women; disabled individuals; and Vietnam era, special disabled and other protected veterans. The Affirmative Action Plan is to be written annually and requires: (1) a complex system of statistical analysis of the employer’s current workforce; (2) the number of new hires promotion and job applicant for the past 12 months; and (3) the inclusion of the external workforce availability gained from various government agencies. The third requirement means that employers must establish goals and timetables in job classifications in which women and minorities are underutilized based on availability in the reasonable recruitment area or the institutions own workforce. Employers are measured by good faith efforts to achieve these goals and timetables and not by actual achievements. Good faith efforts include engaging in outreach and recruitment activities, instituting employee development programs, training management and executives on affirmative action, and documenting all of these efforts on a day-to-day basis.
Note that only Executive Order 11246 requires employment goals in an Affirmative Action Plan whereas neither the Rehabilitation Act of 1973 nor the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 requires employment goals as described in (3) above; however, the requirements listed in (1) and (2) above apply to each of the order or Acts.
Nonetheless, preparation of an Affirmative Action Plan is time consuming and a rather complex process of statistical analysis and narrative development. In fact, affirmative action requirements essentially are describing a “program” and not only a “plan.” Financial institutions should be advised that if they do not plan to use an outside consultant for preparing their plan, they should expect that one full-time employee will likely be devoted to its preparation and that employee will have to have expertise in this part of the law. Additional affirmative action information may be found on the OFCCP’s website: http://www.dol.gov/ofccp/regs/compliance/ca_11246.htm.
VII. OTHER CONTRACTOR REQUIREMENTS
A. Equal Opportunity Clause
Executive Order 11246 requires federal contractors with contracts or subcontracts of $10,000 or more to include an equal opportunity clause in every contract or subcontract. The clause is found at 41 C.F.R. § 60-4(a)(1-7) and may be incorporated by reference in contracts due to its length.
B. Affirmative Action Clauses
The Rehabilitation Act of 1973, which provides that federal contractors include a six paragraph affirmative action clause to be included in contracts and subcontracts of $10,000 or more, is found at 42 C.F.R. § 60-741.4 and such clause may be incorporated by reference in such contracts.
The Vietnam Era Veterans’ Readjustment Assistance Act of 1974 provides that federal prime and subprime contractors include a 13 paragraph affirmative action clause in contracts and subcontracts of $15,000 or more and that the clause, set forth in 41 C.F.R. § 250.4, may be incorporated by reference.
C. Listing Job Openings
The Vietnam Era Veterans’ Readjustment Assistance Act of 1974 also requires federal contractors with contracts or subcontracts of $15,000 or more to list job openings with the local state’s job service at the time the contract is executed and during its performance. Executive and top management openings, openings filled within the contractor’s business and openings for three days or less need not be listed.
D. Illegal Pay Discrimination
Executive Order 11246 prohibits federal contractors from discriminating in “rates of pay or other forms of compensation.” (41 C.F.R. 60-1.4(a)(1)). OFCCP enforces this requirement through review and investigation of contractor pay practices, data and other relevant information for potential systemic and individual evidence of discrimination. In addition, contractors must review and monitor their compensation systems to “determine whether there are gender-, race-, or ethnicity-based disparities.” Contractors must maintain records, including but not limited to “rates of pay or other terms of compensation.”
E. Increased Minimum Wage (Not Applicable to Financial Institutions)
A Presidential Executive Order has been signed requiring that all federal contractors pay their employees a minimum of $10.80 an hour. The Presidential Executive Order generally applies to federal contractors and subcontractors who are parties to federal contracts or subcontracts issued or solicited after January 1, 2020.
Effective January 1, 2020, the minimum wage required for employees of covered federal contractors and subcontractors will be $10.80 per hour. At this point, it does not appear that there are any exemptions for part-time employees, which would require part-time employees to also be paid a minimum of $10.80 an hour by federal contractors.
F. Mandated Paid Sick Leave
Under Executive Order 13706 federal contractors will be required to provide their employees with paid sick leave. Under the Executive Order, all employees working under a federal contract or subcontract must earn at least one hour of paid sick leave for every 30 hours worked. A contractor may not set a limit on the total accrual of paid sick leave per year, at less than 56 hours. The order affects most procurement contracts or contract-like instruments where the solicitation is issued on or after January 1, 2017.
1. Absences Qualifying for Paid Sick Leave
Paid sick leave earned under the Executive Order may be used by an employee for an absence resulting from:
Paid sick leave would be carried over from year to year, and must be reinstated for employees rehired by a covered contractor within 12 months after a job separation. The use of paid sick leave cannot be made contingent on the requesting employee finding a replacement to cover any work time missed.
2. Request for Paid Sick Leave
Paid sick leave must be provided upon the submission by an employee of a written or oral request (including the expected duration of the leave) at least seven (7) calendar days in advance where the need for leave is foreseeable, and as soon as practicable if the leave is unforeseeable.
3. Certification
A contractor may only require a certification issued by a health care provider for paid sick leave used for the purposes listed in subsections II, (i), (ii), or (iii) above for employee absences of three (3) or more consecutive workdays, to be provided no later than 30 days from the first day of the leave. If three or more consecutive days of paid sick leave is used for the purposes listed in subsection II, (iv) above (domestic violence, sexual assault, or stalking), documentation may be required to be provided from an appropriate individual or organization with the minimum necessary information establishing a need for the employee to be absent from work. The contractor is prohibited from disclosing any verification information and must maintain confidentiality about the domestic violence, sexual assault, or stalking, unless the employee consents or when disclosure is required by law.
4. Payment Upon Separation Not Required
The Executive Order provides that an employee is not entitled to payment for any accrued but unused sick leave upon separation, however, any unused leave is subject to reinstatement if the employee returns to work within 12 months.
5. Non-Discrimination
A covered contractor may not interfere with or in any other manner discriminate against an employee for taking, or attempting to take, paid sick leave as provided under the order, or in any manner asserting, or assisting any other employee in asserting any right or claim related to the order.
6. Existing Leave Policies
A contractor’s existing paid leave policy will satisfy the requirements of the Executive Order if the amount of paid leave is sufficient to meet the requirements of the Executive Order (i.e., at least seven (7) days of paid sick leave annually) and it may be used for the same purposes and under the same conditions as required by the Executive Order
G. Pay Transparency – Anti Retaliation
1. Contractors’ Defenses
There are two broad categories that may not be protected under the final rule, and which employers can use to defend against alleged violations of the pay transparency rule. The first defense allows the contractor to prove that it would have taken the same adverse action against the individual in the absence of the employee’s protected activity, referred to as the “general or workplace rule defense.”
Under this defense, the contractor must show that it disciplined the employee for violation of a consistently and uniformly applied policy—a policy which does not prohibit individuals from discussing their compensation.
In addition, a contractor's actions will not be deemed to be discriminatory if the employee has access to the compensation information of other employees/applicants as part of such employee’s “essential job functions” and disclosed the compensation in a scenario which was not in response to a formal complaint, charge, investigation, or other proceeding. This is referred to as the "essential job functions defense," information as obtained as part of an employee’s essential job functions if:
2. Notice to Employees
Contractors must incorporate the nondiscrimination provision into their Employee Handbooks or Manuals, and also must disseminate the provision to employees and applicants either electronically or by posting the prescribed provision in conspicuous places available to employees and job applicants.
3. Equal Opportunity Clause
The final rule also revises the Equal Opportunity Clause to include the new nondiscrimination provision. Beginning on January 11, 2016, contractors must include the revised EEO Clause in all federal contracts and subcontracts that require such clauses. The clause must now say: The contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee’s essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the contractor’s legal duty to furnish information.
VIII. EMPLOYER INFORMATION REPORT-EEO-1 REPORT
Most banks with 50 or more employees are required under the Equal Employment Opportunity Act to file an Employer Information Report (EEO-1) by September 30 of each year. The data is reviewed by the Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP) to assess employment compliance within the industry. The survey report requires banks to identify the ethnic, racial and gender composition of their workforce.
The EEOC has issued new regulations that require the use of a newly revised EEO-1 Report by employers, beginning with the survey due September 30, 2007. For surveys due on September 30, 2006, employers should continue to use the EEO-1 Report used in previous years which is still available at the EEOC Website.
The key revisions in the EEO-1 Report that go into effect for the September 2007 reports are as follows:
In 2007, Federal Regulators made substantial changes to race, ethnicity and job categories which must be used on the report. The new data requirements ask most bankers to survey existing employees to update their ethnic classification.
The EEOC and the Department of Labor, Office of Federal Contract Compliance Programs (OFCCP) are two government agencies that use the EEO-1 data. The EEOC uses the data to support civil rights enforcement. The EEOC also uses the data to analyze employment patterns, such as the representation of female and minority workers within companies, industries, or regions. The OFCCP uses the data from the reports to determine which employer facilities to select for compliance evaluations. OFCCP’s system uses statistical assessment of the reports to select facilities where the likelihood of systematic discrimination is the greatest.
IX. EEO-1 PAY DATA SUBMISSION
A. Introduction
In early July 2007, the Equal Employment Opportunity Commission (EEOC) issued revised regulations on age discrimination in the workplace. These updated regulations essentially incorporate the U.S. Supreme Court’s 2004 ruling in General Dynamics Land Systems, Inc. v. Cline into the Age Discrimination in Employment Act (ADEA), clarifying that the ADEA does not prohibit employers from favoring an older employee over a younger one when both are protected by the Act.
The ADEA protects employees and job applicants who are 40 years of age or older from employment discrimination based on age. Under the ADEA, it is unlawful to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. The ADEA applies to employers with 20 or more employees, including state and local governments.
B. Revised Regulations
The EEOC’s new rule now provides:
It is unlawful for an employer to discriminate against an individual in any aspect of employment because that individual is 40 years old or older, unless one of the statutory exceptions applies. Favoring an older individual over a younger individual because of age is not unlawful discrimination under the ADEA even if the younger individual is at least 40 years old.
Additionally, the EEOC nevertheless clarified that the new regulation interprets only the ADEA, not state or local law. As such, states and localities remain free to offer greater protection to younger employees than is provided by the ADEA.
C. Job Advertisements
The EEOC also provided employers with some guidance related to job advertisements. Specifically, the new regulations state:
Help wanted notices or advertisements may not contain terms and phrases that limit or deter the employment of older individuals. Notices or advertisements that contain terms such as age 25 to 35, young, college student, recent college graduate, boy, girl, or others of a similar nature violate the Act unless one of the statutory exceptions applies. Employees may post help wanted notices or advertisements expressing a preference for older individuals with terms such as over age 60, retirees, or supplement your pension.
As a result of the foregoing, an employer may use language that expresses a preference for older workers; however, it cannot use advertising language that prefers younger workers. For example, an employer may not express a preference for younger individuals even if the younger individuals are protected by the Act (40 years of age or older). As a result, a job advertisement seeking candidates “between the ages of 40 and 50” would be impermissible because it expresses a preference for younger individuals within the protected age group. Clearly, however, advertising for job openings seeking candidates “age 60 and above” would be permitted.
D. Burden of Proof
The U.S. Supreme Court also issued an important decision in the case of Gross v. FBL Financial Services, Inc., in 2009 which clarified that plaintiffs in ADEA lawsuits carry a higher burden of proof than many courts had previously applied. In the Gross case, the court had instructed the jury that it must find for the plaintiff if he had proved by a preponderance of the evidence that his age was “a motivating factor” in the employer’s decision to reassign the plaintiff to a different position which the plaintiff claimed was a demotion constituting age discrimination and that the burden then shifted and if the employer proved that it would have demoted the plaintiff regardless of age, the jury must find in favor of the employer. On appeal, the 8th Circuit Court held that the jury had been improperly instructed and determined that the plaintiff could not shift the burden to the employer until the plaintiff first presented direct evidence that age was a substantial factor in the employment decision. On appeal, the Supreme Court determined that the burden of persuasion never shifts to the party defending an alleged mixed motives discrimination claim brought under the ADEA. In so ruling, the court noted the plain language of the ADEA requiring an employee to show that an adverse action was taken “because of such individual’s age.” The court explained that “to establish a disparate treatment claim under the plain language of the ADEA, therefore, a plaintiff must prove that age was the ‘but-for’ cause of the employer’s adverse decision.” The Supreme Court further went on to clarify that “the plaintiff retains the burden of persuasion to establish that age was the ‘but-for’ cause of the employer’s adverse action.” And that the burden of persuasion stays the same for all disparate treatment claims under the ADEA, mixed motive or not. A plaintiff must prove by a preponderance of the evidence (which may be direct or circumstantial), that age was the but-for cause of the challenged employer decision. This burden does not shift to the employer to show that it would have made the decision regardless of age, even if the plaintiff produced evidence that age was at least one motivating factor.
XI. RECORD KEEPING REQUIREMENTS FOR INTERNET APPLICANTS
With the increasing use of the Internet for job posting and searching, the OFCCP has clarified its recordkeeping requirements relating to Internet job applications. The rules became effective for financial institutions and other federal contractors on February 6, 2006.
Under the new rule, federal contractors are required, where possible, to keep race, ethnicity and gender information only about “Internet applicants” who were actually considered for a particular position and who possess basic qualifications for the job opening. Individuals listed on a resume site searched by the federal contractor are not considered “Internet applicants” for purposes of the OFCCP’s recordkeeping rule. The OFCCP rule defines an “Internet applicant” to mean an individual who meets all of the following criteria:
The new rule applies to jobs for which the federal contractor accepts expressions of interest via the Internet and related technologies such as E-mail, commercial and internal resume databanks and employer websites.
Existing recordkeeping rules apply to those positions for which the contractor does not use the Internet, E-mail, or other electronic channels and does not accept any electronic submission.
The amended recordkeeping rules require federal contractors to retain expressions of interest for those who were “considered” for employment, even if the other Internet Applicant criteria are not met. Contractors are not required to retain records regarding individuals who were never considered for a particular position.
Depending upon the medium used to access an individual’s resume, a contractor will have different recordkeeping obligations. If utilizing internal resume databases, the contractor must maintain a record of each resume that was added to the database, the date it was added, the position for which each search of the database was made, and corresponding to each search, the substantive search criteria used and the date of the search. A resume downloaded from an external resume database into an internal resume database becomes an internal database resume. Contractors utilizing external resume databases (i.e., Monster.com), must maintain records of the position for which each search of the database was made, and corresponding to each search, the substantive search used, the date of the search, and the resumes of job seekers who met the basic qualifications for the particular position who are considered by the contractor.
Importantly, the records and the context of both internal and external databases, must be retained regardless of whether the individual meets the four-part Internet Applicant test, to allow the OFCCP to determine consistent application of qualification standards.
Length of time that a record must be maintained depends on the size of the company and the contract it holds. For companies with fewer than 150 employees and a contract of at least $150,000, the record retention period is one year. Contractors with at least 150 employees and a contract of $150,000 are required to maintain the records for a period of two years. The time period is measured from the time the record was created or from the time of the personnel action associated with that record, whichever is later.