Guidelines for Avoiding AAP Recordkeeping Violations
Recordkeeping has persistently maintained the first place among a list of Affirmative Action violations. In fact, the Office of Federal Contracts Compliance Programs (OFCCP) maintained that recordkeeping violations continued to be the most frequently cited violation by OFCCP compliance officers. Thus, it is prudent that federal contractors take proactive steps to ensure that their companies are in full compliance with the record retention requirements of Executive Order 11246. The EO bans discrimination and requires federal contractors to take affirmative actions to increase minority and female participation in the workforce. Below are guidelines to help you establish an effective recordkeeping program.
The 10 guidelines for building an effective recordkeeping system:
- Develop a broad education program. Employees who have access to the employment files must be trained in or at minimum made aware of the federal requirements for recordkeeping. Those employees can be receptionists, job interviewers, facility managers, executives and computer staff.
- Know how long to retain records. Executive Order 11246 requires large contractors (employers) of 150 or more to retain most employment records for two years and smaller employers--those with fewer than 150 employees--to keep most of them for one year. According to a regional director in the OFCCP, "Many companies think they only need to keep their records for six months.”
- Open actions: if the OFCCP has scheduled your company for an evaluation, a contract review, a complaint investigation, or other enforcement actions, all relevant records must be retained until the action is closed. Employers Group, however, recommends that all records be retained for at least seven years, and medical records for at least 30 years.
- Review the policy and procedures for document destruction to avoid the risk of destroying records that are relevant to the compliance review or other enforcement actions. Be sure to have a policy in place to ensure that you do not accidentally destroy relevant documents.
- Inventory applications: make sure that applications/resumes match the applicant flow. If you find discrepancies, you will need to find out why and document the reason (s). You may also check for any problems in record making and recordkeeping procedures to correct them.
- Maintain "contemporaneous” records: applicant flow should be tracked as it takes place. Records made contemporaneously with the recorded event are more persuasive. Avoid creating applicant flow after the fact. It can cause discrepancies and lead to a deficient recordkeeping system, unable to identify possible discrimination.
- Document your company’s efforts to solicit race and gender data. OFCCP expects to see some proof that the contractor met its obligation to obtain the data. However, we must be aware of the fact that providing this information is voluntary for job applicants.
- Be familiar with the broad definition of a "record". A broader definition includes any memorialization of information relevant to employment activities. For example, a record can be written paper documents, e-mails, other electronic communications, Blackberry notes, or even "post-it notes" of an interview.
- Establish an electronic record policy to ensure easy storage and retrieval. Contractors should archive electronic records for easy retrieval upon request or on demand of the OFCCP.
- Keep track of records submitted to OFCCP. Contractors are advised to ensure the accuracy and integrity of the data before delivering to the OFCCP. This can eliminate any potential disputes between the submitted data and the analysis compiled by OFCCP. Most of the records that the agency uses in its analyses come from you.
Repercussions of not keeping good records:
If records are not available for the OFCCP to review, federal regulations permit the agency to draw an adverse inference. Moreover, the OFCCP can use census information for the lack of applicant data to determine if there is a statistically significant disparity in employment, affecting women and minorities.
Another eye opener for contractors, if an applicant flow does not provide race or gender information, the OFCCP will look at the demographics by zip code to identify race and use names to determine gender. The OFCCP is also permitted to call an applicant to ask for the race and gender. The agency will further locate an applicant “alleged victim” using social security numbers, search services, Internet search, etc. Unfortunately, the contractor may bear the costs of the agency’s efforts.
It pays to keep good records! You will save your company from liability and the aggravation of going through a lengthy, tumultuous and costly compliance evaluation.
