1C02 Regulatory Citations for Recordkeeping
If a contractor fails to submit data because it did not maintain appropriate records, one or more of the following regulatory sections may be applicable for Investigators to cite in the SCN or other closure document.
- Executive Order 11246 Recordkeeping and Related Requirements, 41 CFR 60-1.12 and 60-2.17(b) and 60-2.17(d). These two sections set forth requirements that necessitate recordkeeping of employment and personnel records.
- Section 60-1.12 sets forth the required document retention periods and identification requirements for all employment and personnel records and AAPs. Generally, a contractor must retain these records for two years unless it has less than 150 employees or does not have a federal contract of at least $150,000, in which case the period is one year.
- Section 60-2.17(b) requires that an AAP identify problem areas and Section 60-2.17(d) requires that an AAP include internal audit and reporting systems. Investigators may cite these requirements in conjunction with recordkeeping violations because they cannot be appropriately implemented without maintaining and analyzing basic data on employment activity as required by 41 CFR 60-3.4 and 60-3.15.
- General Data Requirements under the Uniform Guidelines on Employee Selection Procedures (UGESP), 41 CFR Part 60-3. These guidelines were designed to provide a framework for determining the proper use of tests and other selection procedures used as a basis for employment decisions. Section 60-3.4 requires contractors to maintain records that show the impact such selection procedures have on the employment opportunities of persons by identifiable race, sex, and ethnic groups. The race and ethnic groups are defined by 41 CFR 60-3.4B as Black, Hispanic, Asian, American Indian, and White other than Hispanic. However, OFCCP also permits contractors to keep their records concerning impact by using the race and ethnic categories on the Equal Employment Opportunity Standard Form 100, Employer Information Report EEO-1 series (EEO-1 report).
- Recordkeeping Requirements under UGESP for Contractors with 100 or More Employees. 41 CFR 60-3.15A(2) requires contractors with 100 or more employees to maintain and have available records or other information for each job showing whether the total selection process for that job has an adverse impact based on race, sex, or ethnic group as defined by 41 CFR 3.5B, described above. Contractors must have records on adverse impact determinations for each protected group that constitutes at least 2% of the labor force in the relevant labor area or 2% of the applicable workforce. Where the total selection process has an adverse impact, the Investigator may request validity evidence for each component of that process which has an adverse impact. Different types of validity evidence that may be maintained by contractors are explained in 41 CFR 60-3.15A(3).
- Recordkeeping Requirements under UGESP for Contractors with less than 100 Employees. 41 CFR 60-3.15 A(1) requires contractors with less than 100 employees to maintain and have available records for each job on all applicants, hires, promotions, terminations and any other selection decisions by sex and, where appropriate, by race and national origin. Contractors should maintain these records for any race or national origin group constituting more than 2% of the labor force in the relevant labor area. However, it is not necessary to maintain records by race and national origin if one race or national origin group in the relevant labor area constitutes more than 98% of the labor force in that area. If an Investigator has reason to believe a contractor’s selection procedure has an adverse impact, the Investigator may request evidence of validity for that procedure.
- Section 503 Recordkeeping Requirements, 41 CFR 60-741.80, 60-741.44(f)(4) and 60-741.44(k). Section 60-741.80 provides the general recordkeeping requirements for Section 503 while Sections 60-741.44 (f)(4) and (k) explain the retention requirements for the assessment of external outreach and recruitment efforts, and the data collection analysis, respectively.
- Section 60-741.80 sets forth the required document retention periods and identification requirements for all employment and personnel records, including, but not limited to, hires, requests for reasonable accommodation, terminations, the results of any physical examination, post-offer invitations to self-identify and any subsequent invitations to employees to self-identify. Generally, a contractor must retain these records for two years, unless it has fewer than 150 employees or does not have a federal contract of at least $150,000, in which case the period is one year.
- Sections 60-741.44(f)(4) and (k) require contractors to maintain certain records for three years. Such records include documentation of all activities contractors undertake to disseminate their affirmative action policies externally, and to conduct and assess outreach and positive recruitment. The three-year retention period also applies to documentation of the computations and comparisons performed by contractors to analyze applicant and hire data for individuals with disabilities.
- VEVRAA Recordkeeping Requirements, 41 CFR 60-300.80, 60-300.44(f)(4), 60-300.44(k), and 60-300.45(c). Section 60-300.80 provides the general recordkeeping requirements for VEVRAA while Sections 60-300.44(f)(4) and (k) explain requirements for external outreach and recruitment efforts, and the data collection analysis, respectively. Finally, Section 60-300.45(c) provides the requirement for documenting the annual VEVRAA hiring benchmark.
- Section 60-300.80 sets forth the required document retention periods and identification requirements for all employment and personnel records, including, but not limited to, hires, requests for reasonable accommodation, terminations, results of any physical examination, and post-offer invitations to self-identify. Generally, a contractor must retain these records for two years unless it has fewer than 150 employees or does not have a federal contract of at least $150,000, in which case the period is one year.
- Sections 60-300.44(f)(4) and (k) require contractors to maintain certain records for three years. Such records include documentation of all activities contractors undertake to disseminate their affirmative action policies externally and to conduct and assess outreach and positive recruitment. The three-year retention period also applies to documentation of the computations and comparisons performed by contractors to analyze applicant and hire data on protected veterans, including data gathered from invitations to self-identify for applicants and those applicants who have been hired.
- Section 60-300.45(c) requires contractors to document the hiring benchmark that they establish each year, along with the factors they considered and their relative significance, and to retain the documentation for three years. In reviewing this documentation, the Investigator must determine whether the contractor used the five-factor method for establishing the VEVRAA hiring benchmark or if the contractor set its benchmark to equal the national percentage of veterans in the civilian labor force. If the contractor used the five-factor method, the Investigator must examine the relative significance of each factor considered by the contractor in setting its benchmark.