The following can be shared with customers, but only existing customers where the confidentiality provisions of their MSA would apply.
Our current offering
Gem provides recruiting communication management services allowing recruiters to more efficiently source and engage with potential candidates. These services include email management and response tracking and statistics associated with the effectiveness of your recruiting efforts.
Our understanding of OFCCP
It is illegal for an employer with government contracts to recruit new employees in a way that discriminates against them because of their race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information.
For recruiters using external databases, in addition to being required to maintain a record of the date and criteria 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.
These rules apply to applicants who have submitted an interest in a specific role with the company and meet all of the following four criteria:
- The individual submitted an expression of interest in employment through the Internet or related electronic data technologies;
- The contractor considered the individual for employment in a particular position;
- The individual’s expression of interest indicated that the individual possesses the basic qualifications for the position; and
- The individual, at no point in the contractor’s selection process prior to receiving an offer of employment from the contractor, removed himself or herself from further consideration or otherwise indicated that he/she was no longer interested in the position.
Our understanding of how OFCCP applies toGem
Gem may qualify as an internal database according to the OFCCP guidelines in that users will add candidates to their Gem account and that those candidates are then searchable by the user. This then opens us up to some additional reporting and record keeping requirements.
From the OFCCP website:
- The Internet Applicant rule requires contractors to maintain any and all expressions of interest through the Internet or related electronic data technologies as to which the contractor considered the individual for a particular position, except for searches of external resume data bases discussed below [not included]. Contractors also are to maintain records identifying job seekers contacted regarding their interest in a particular position. In addition, for internal resume databases, the contractor must maintain a record of each resume added to the database, a record of the date each resume was added to the database, 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.
We do not currently fit into any of the other classifications for “Internet or related electronic data technologies” that are also otherwise included in OFCCP reporting requirements:
- Electronic mail/email
- Resume databases
- Job banks
- Electronic scanning technology
- Applicant tracking systems/Applicant service providers
- Applicant screeners
Potential recommendation for our users
Because the OFCCP requires employers to store all records associated with any potential candidate that would qualify for a given role, you can limit the scale, but not the scope, of your reporting obligations by making your searches for candidates as specific as possible. From the OFCCP website:
- What happens if contractors use search criteria beyond the basic qualifications?
- The final rule does not prohibit the use of additional search criteria in making a selection decision. However, an individual is an Internet Applicant if he or she meets all of the pre‐established basic qualifications plus the other three prongs of the definition. The contractor could be found in violation of Executive Order 11246 if it failed to maintain required records, such as the resume from an external resume database of each individual that met the basic qualifications or to collect the required demographic data on all individuals who met the four “Internet Applicant” criteria (i.e., those who met the “basic qualifications,” even if additional screening was done based on additional qualifications).
- For example, assume a contractor is looking for someone with a Bachelor’s degree in engineering to work as an engineer in Cleveland, Ohio for $60,000 per year. The contractor would like to search ManyResumes.com for candidates. Also assume that a nationwide search of ManyResumes.com would produce 5000 resumes of job seekers with a B.S. in engineering, 200 job seekers interested in working as an engineer in Cleveland for $60,000 a year, and 100 job seekers who both possess a B.S. in engineering and want to work as an engineer in Cleveland for $60,000 per year. If the contractor’s initial search of ManyResumes.com is for anyone meeting the basic qualification of a B.S. in engineering, the search will produce 5000 resumes, all of which would need to be retained under 41 C.F.R. 60‐1.12(a). On the other hand, if the contractor initially searches ManyResumes.com for job seekers interested in working as an engineer in Cleveland for $60,000, the search will produce 200 resumes. If the contractor searches the pool of 200 resumes for the basic qualification of a B.S. in engineering, the search will produce 100 resumes that must be retained.
Employers are not required to maintain records for candidates that are not interested in the offered position. OFCCP guidelines consider two or more non-responses from a candidate to a recruiters outreach to constitute disinterest. We should recommend that recruiters make all Gem sequences are at least two stages in length to ensure compliance with this requirement. From the OFCCP website:
- Section 60‐1.3(5) of the Internet Applicant rule states that one way a contractor can conclude that a job seeker is not interested in a position is the individual’s passive demonstration of disinterest shown through repeated non‐responsiveness to inquiries from the contractor about interest in the position. How many times must a contractor attempt to contact an individual to conclude that he or she has shown disinterest through “repeated non‐responsiveness to inquiries”?
- A contractor may conclude that an individual has shown disinterest after two or more non‐responses to inquiries by the contractor. A contractor may also determine that a job seeker has withdrawn from further consideration for the position based on information the individual provided in the expression of interest, such as salary requirements or preferences as to type of work or location of work.
Once a candidate has expressed interest in a role, they will have fulfilled the first of the four criteria OFCCP has designated as qualifying them as a candidate:
- The individual submitted an expression of interest in employment through the Internet or related electronic data technologies;
- The contractor considered the individual for employment in a particular position;
- The individual’s expression of interest indicated that the individual possesses the basic qualifications for the position; and
- The individual, at no point in the contractor’s selection process prior to receiving an offer of employment from the contractor, removed himself or herself from further consideration or otherwise indicated that he/she was no longer interested in the position.
Using Gem, the first point should effectively be the last point that you would reach in the process for qualifying that individual. Because Gem is used for outreach to candidates that you have already sourced from LinkedIn, etc. as being qualified for the role, you would have already met the second and third bullet points before they had responded to your outreach. Their response also meets point four. At this point, all candidates should be added to your ATS and sent the required OFCCP diversity survey to ensure full compliance with the OFCCP reporting requirements.
Additional benefits we could offer
Once a candidate is asked to move to an applicant stage, Gem could assist in soliciting the required diversity data by automatically sending the diversity questionnaire for the recruiter/company. The questionnaire could be sent when immediately when candidates are uploaded to Greenhouse, with the Greenhouse questionnaire called via API.
- Our current offering
- Our understanding of OFCCP
- Our understanding of how OFCCP applies toGem
- Potential recommendation for our users
- Additional benefits we could offer