Recordkeeping violations continue to be the top violation during an OFCCP audit. These voluminous, and often cumbersome, requirements are intended to promote equal opportunity during a company’s hiring process. They can also promote confusion among unsuspecting employers, making them an easy target during an audit. To understand how such violations occur, and to prevent them from occurring, contractors first need to know how to identify what is considered a “record” for the purposes of an audit.
The OFCCP interprets the phrase “any personnel or employment records” broadly. It includes what can be considered the obvious:
- documents, such as applications,
- disciplinary actions,
- records relating to termination decisions, and
- rates of pay.
But it also covers other categories of documentation that can be critical to responding to an OFCCP audit:
- documents having to do with requests for accommodation,
- drug test results,
- employee self-identification forms,
- job advertisements and postings,
- all “expressions of interest” in employment,
- employment or assessment tests,
- validation materials supporting these tests (if required by the Uniform Guidelines on Employee Selection Procedures), and
- test results.
Furthermore, “interview notes” also are specifically identified in the regulations as “personnel or employment records.” Thus, the OFCCP will consider any notes taken during an interview, including handwritten notes written on a resume, as a “personnel or employment record.”
Once you have the required “personnel or employment,” there is also an obligation to retain the information. Unfortunately, there is no KonMari option for the records. More specifically, federal government contractors and subcontractors must preserve “any personnel or employment records” that they make for specified periods of time, depending on the number of workers the contractor employs. If a contractor employs fewer than 150 employees, then the record retention period is one year. If the contractor employs 150 employees or more, then the record retention period is two years. The retention period begins on the date the record was made or when the personnel action was involved, whichever occurs later.
Additionally, the regulations also build in penalties for failure to preserve records: “Where the contractor has destroyed or failed to preserve records . . . there may be a presumption that the information destroyed or not preserved would have been unfavorable to the contractor.” 41 C.F.R. Ch. §60-1.12(e). This presumption, however, does not apply if the contractor shows that the destruction or failure to preserve records resulted from circumstances that are outside the contractor’s control. Id.
To minimize exposure during an audit, contractors should ensure that employees who are likely to make “personnel or employment records” are directed to preserve those documents or materials. This, however, is not directed solely to Human Resources, but also to supervisors and other employees who may be part of the hiring and interviewing process. Then, ideally, these records would be preserved in a centralized location so that they are readily accessible to the individuals who are responding on behalf of the employer to any OFCCP audit request.