Companies use temporary staffing support for a variety of reasons, whether it’s scaling their skilled and unskilled workforce or recruiting top talent with niche skill sets. Temporary workers often work for unspecified durations dictated by the business needs of the staffing client, but sometimes clients choose to convert a temporary assignment into a traditional employee role. In a “temp-to-perm” structure, it is not uncommon for a client with federal contracts to request support from its staffing agency with its affirmative action and nondiscrimination obligations under the Office of Federal Contract Compliance Programs, or OFCCP, which can be a landmine for staffing firms.
Not So Fast
A staffing company can never source, screen, recruit and hire based on any protected basis on behalf of its staffing client’s diversity goals or any other reason without violating Equal Employment Opportunity workplace laws. For example, using a client’s diversity goals, such as a preference for hiring minorities and women, is not a viable defense for any staffing company and creates heightened risks for violating Title VII of the Civil Rights Act of 1964.
Even if a staffing company is also a federal contractor with OFCCP obligations of its own, it can only source, screen, recruit and hire temporary workers solely on the skills and qualifications defined by the staffing client’s job requisition, without regard to race, age, color, religion, sex, marital status, citizen status, national origin or ancestry, disability, veteran status, or any other legally protected status.
That sounds pretty clear-cut. Is there any kind of support that is legal for staffing firms to provide?
A staffing client can request assistance with OFCCP reporting obligations by capturing accurate applicant flow data and providing certain metric data gathered during the sourcing and recruitment process.
OFCCP record-keeping obligations for government contractors include, among other things, maintaining accurate applicant flow information and documenting all expressions of interest that were considered by the employer for the position. Notably, using a staffing company does not relieve a client of its OFCCP record-keeping obligations in temporary-to-permanent conversion situations. Accordingly, it is imperative that the client make the staffing company aware of its OFCCP obligations before the staffing company starts recruiting for the client’s position to ensure its ability to timely capture all the applicant flow data necessary to support the client’s OFCCP obligations.
While staffing companies cannot assume the record-keeping obligations of the client, the support it can provide to the staffing client should be clearly outlined in a services agreement between the parties. Staffing companies can support clients with OFCCP record-keeping obligations by capturing and retaining accurate applicant flow data, which includes:
- Applicant name
- Application date
- Hire date
- Client requisition ID
- Applicant/candidate disposition reason
- Solicitation of voluntary self-identification
Clients also can request additional support such as agreeing on search terms and database parameters for each requisition to help capture search strings and create controlled applicant pools to limit the applicants submitted to the client to a certain number (i.e., a rule of 10) to determine if the successful candidate is within the pool(s) of candidates considered directly by the client.
Ideally, the staffing company should provide the captured metrics on a periodic basis to the client for retention. At the very start of the staffing engagement, the staffing client should provide notice of its OFCCP obligations and partner to structure a recruitment process so the staffing company can provide relevant metrics that may be needed. In the event that a temp-to-perm hire is later challenged, the client needs to be able to show the applicant pool and pipeline that were associated with that requisition ID.
Supporting a staffing client with OFCCP obligations requires a comprehensive contract as well as a close working partnership and detailed dialog to properly mitigate real risks to the staffing client and the staffing company. As with most successful staffing relationships, a close partnership between the staffing agency and the client is required to adequately mitigate risks to both parties.