June 17, 2013
By Stephen C. Dwyer
General Counsel
703-253-2037
sdwyer@americanstaffing.net
Valerie J. Hoffman
Partner, Seyfarth Shaw LLP
312-460-5870
vhoffman@seyfarth.com

Application of EEO RecordRecord - Keeping and Affirmative
Action Requirements to Temporary Employees
This issue paper sets forth the position of the American Staffing Association
regarding the obligation of staffing firms to comply with federal record-keeping
requirements administered by the U.S. Equal Employment Opportunity
Commission and the record-keeping and affirmative action regulations of the
Office of Federal Contract Compliance Programs (an agency of the U.S.
Department of Labor). EEOC has general responsibility for enforcing the
nation’s equal employment opportunity laws, and OFCCP enforces equal
opportunity mandates prohibiting federal contractors and subcontractors from
discriminating on the basis of race, color, religion, sex, national origin, disability,
or veteran status—and requiring those contractors and subcontractors to take
affirmative action to ensure nondiscrimination.
The paper covers three issues:
Whether temporary employees of staffing firms are subject to the EEOC and
OFCCP record-keeping and affirmative action requirements, including the
1
OFCCP’s Internet applicant rule
To what extent the EEOC and OFCCP exemption for “recruitment
practices” applies to staffing firms’ activities
How staffing firms should comply with client requests for employee gender,
race, and ethnicity data

Application of EEOC and OFCCP Rules to Staffing Firm Temporary
Employees
For more than 40 years, ASA has taken the position that EEOC’s record-keeping
and OFCCP’s record-keeping and affirmative action regulations do not apply to
temporary employees on the payroll of staffing firms. This position is based on
the express exclusion of temporary employees from the definition of “employee”
in the guidelines for completing EEO-1 reports, thus relieving employers of any
2
obligation to include temporary employees in their reports. ASA argued for the
exclusion after the EEO-1 report was first proposed in 1965, asserting that
visually determining the race or ethnicity of thousands of employees who work for
clients at remote locations would be impossible. Moreover, the association was
concerned that race and ethnic data obtained from job applicants could be used in
making assignments, thereby subjecting staffing firms to discrimination claims.
ASA subsequently took the position that because the OFCCP affirmative action
regulations expressly refer to the EEO-1 report as a required report for prime
3
contractors and subcontractors, because OFCCP guidance and practice generally
expects contractors to align their affirmative action programs (AAPs) to be
consistent with their EEO-1 report, and because the EEO-1 report is the
primary basis and information upon which OFCCP selects contractors for audit
4
of their AAPs, staffing firms are not required to include temporary employees in

 American Staffing Association
Record-Keeping and
Affirmative Action Rules
Page 2

their AAPs. ASA asserted that applying the published affirmative action criteria
to employees whose tenure is temporary would be impossible and that even if the
rules could practically be applied, they would confer no meaningful benefit on
such workers.
ASA continues to take the position that the exclusion of temporary employees for
EEO-1 reporting purposes provides a basis for asserting that the laws and
regulations enforced by OFCCP, including its Internet applicant rules, do not apply
to temporary employees.
To the association’s knowledge, this position has never been litigated in court or
specifically addressed in the OFCCP regulations. Thus, the issue of whether
temporary employees must be included in AAPs has never been definitively
resolved. However, based on its historical inclination to expand its coverage
whenever possible, and other guidance it has issued, it is likely that OFCCP would
take the position that temporary employees of staffing firms should be included in
the firms’ AAPs. Indeed, some OFCCP field auditors have taken such a position
in the past.
In this regard, OFCCP regulations at 41 CFR §60-2.1(d) provide, “Each
employee in the contractor’s work force must be included in an affirmative action
program.” In the preamble to OFCCP’s 2000 amendments to its regulations
regarding how AAPs must be developed and who must be included in an AAP,
OFCCP stated its belief that “The term ‘employees’ is broad enough to include parttime, temporary, and full-time employees.”5 In OFCCP’s proposed itemized listing of
information required to be provided by federal contractors during a compliance
evaluation or audit, proposed item 12 (current item 11) provides that the request for
employee-level compensation data encompasses all employees “including, but not
limited to, full-time, part-time, contract, per diem or day labor, temporary.”
Importantly, however, neither the 2000 preamble nor the proposed modification to
the itemized listing rises to the level of law or regulation. Accordingly, ASA believes
that they are not binding and that 41 CFR§ 60-2.1(d) must be interpreted to be
consistent with the scope of EEO-1 reporting as discussed previously.
If a staffing firm with an AAP that excludes its temporary employees is audited by
OFCCP, and the agency notices the exclusion of the temporary employees, the
agency may allege a violation of its regulations. Should the staffing company
decline to begin reporting these employees, OFCCP may proceed to litigation.
If staffing firms elect to include temporary employees in their AAPs, OFCCP will
expect the firms to have collected, maintained, and self-audited applicant flow data
by race, ethnicity, and gender for such workers—a requirement that may be very
difficult to meet, since firms must administer a self-identification form to all
applicants for temporary positions, not only those who are interviewed.6 Staffing
firms also must conduct annual analyses to determine if their hiring, promotion, or

 American Staffing Association
Record-Keeping and
Affirmative Action Rules
Page 3

termination of temporary employees results in statistically significant adverse
impact by race, ethnicity, or gender.
Importantly, as discussed in further detail later, particular clients that are federal
contractors may require their staffing firms to maintain and track this type of
information regardless of whether the staffing firm is a federal subcontractor or
otherwise specifically required by OFCCP to do so. Frequently, federal contractor
clients demand that this information be collected as a condition of maintaining the
account. This is often the case because OFCCP has, on occasion, taken the position
that when a temporary-to-hire conversion occurs, temporary employees who worked
in the same position as the converted employee during the period the pool was
evaluated for possible hire should be reported as the client’s applicant flow in its AAP.

The Exemption for ‘Recruitment Practices’
Practices’ Under EEOC
EEO C and DOL Rules
In 1978, EEOC and DOL adopted the “Uniform Guidelines on Employee Selection
Procedures.”7 The guidelines specify what records employers should maintain to
determine whether their employment selection procedures have a disparate impact on
minorities and other protected groups, and prescribe methods for validating those
8
procedures that are found to have a disparate impact.
In 2004, the UGESP agencies published questions and answers to clarify the
9
application of the guidelines to Internet recruitment practices. Question 95 asks, “Is
Internet recruitment, like traditional recruitment, exempt from UGESP
requirements?” The answer given is
Yes. As a business practice, recruitment involves identifying and
attracting potential recruits to apply for jobs. Under UGESP,
“recruitment practices are not considered...to be selection
10
procedures,” and the UGESP requirements geared to monitoring
selection procedures do not apply.
Based on these guidelines, ASA believes that staffing firms that identify and attract
recruits for direct hire by clients are engaged in “recruitment practices” as defined
previously and should be exempt from requirements to maintain applicant flow data
under both the UGESP guidelines as well as the OFCCP regulations pertaining to
Internet applicants. Moreover, ASA believes that the exemption for recruitment
practices applies not only to direct placements but also to those made through
temporary-to-hire arrangements.
This position has not been tested in the courts. If a staffing firm has participated in
pre-employment screening of candidates—including rejecting candidates from further
consideration based on their qualifications or other criteria through résumé review,
interview, background checking, or employer references—OFCCP would likely
disagree. In that case, OFCCP would likely consider this pre-employment screening
to be part of the client’s “selection process” and allege that staffing firms that screen a
client’s candidates for employment are acting as agents of the client for this purpose.
This issue is not likely to arise in an OFCCP audit of a staffing firm, however. It
would most likely arise in an audit of the client, when the client’s recruiting practices

 American Staffing Association
Record-Keeping and
Affirmative Action Rules
Page 4

and applicant flow are examined. As such, it would be the client and not the staffing
agency that would receive a notice of violation from OFCCP should its practices be
alleged as noncompliant.

Client Requests for Gender, Race,
Race, and Ethnicity
Ethnicity Data
For the reasons previously noted, federal contractors that use staffing firms to
recruit employees for employment, either through direct placements or through
temporary-to-hire arrangements, may consider themselves required to collect
applicant flow data regarding staffing firms’ temporary employees. They might
therefore request that staffing firms maintain gender, race, and ethnicity applicant
information and might contractually require staffing firms to track and maintain
employee and applicant information, including applicant flow data. Some staffing
firms are being contractually required to use the client’s applicant tracking system
for data entry of applicant flow information. ASA encourages staffing firms to be
cognizant of such possible contractual requirements.
ASA notes the challenges in collecting and providing such data and the
importance of reaching a mutual agreement with the client as to whom should be
counted as an applicant. With regard to the temporary-to-hire activity, as noted
previously, many staffing firms have successfully limited client applicant tracking
to only those temporary employees who were actually placed in the job for which
the temporary-to-hire conversion(s) subsequently occurred. This is a much more
practical approach than tracking everyone whom the staffing firm reviewed for
possible placement with the client. It also is an approach that has been generally
acceptable to OFCCP for temporary-to-hire applicant tracking.
With regard to recruiting employees for hire, ASA notes that some federal
contractors undergoing corporate management compliance evaluations,
commonly known as “glass ceiling audits,” have received OFCCP requests to
interview recruiting firms used to fill senior leadership positions. In these
interviews, OFCCP typically inquires whether the firm was notified that the
client is a federal contractor with equal employment opportunity and affirmative
action obligations; was notified of any special efforts it should use to recruit
minorities, women, veterans, or people with disabilities; and whether it
maintained applicant flow for its client. OFCCP has noted that the federal
contractor itself is responsible for ensuring that it is maintaining applicant flow,
either through its own efforts or the efforts of the recruiter.
ASA believes that the EEOC and OFCCP record-keeping and affirmative action
rules, including the Internet applicant rules, are not applicable to temporary
employees, and that staffing firms engaged in recruitment practices may be
exempt from the legal requirement to maintain applicant flow data. At the same
time, ASA and its members remain firmly committed to ensuring that temporary
employees are recruited, assigned, and employed on a nondiscriminatory basis,
and that staffing firms comply with their contractual obligations while assisting
clients in meeting their EEO obligations.

 American Staffing Association
Record-Keeping and
Affirmative Action Rules
Page 5

The information in this paper is provided to ASA members for informational purposes only
and should not be relied on as legal advice. Because these issues have not been definitively
resolved by the relevant federal agencies or the courts, ASA strongly encourages members to
consult with their own counsel regarding the application of the EEOC and OFCCP recordkeeping and affirmative action rules to their businesses, including the application of any
state EEO laws that may differ from the federal rules and that may apply to temporary
employees. ASA also encourages members to promptly advise the ASA legal department of
any complaint or legal action involving the issues discussed in the paper.

1. Federal contractors or subcontractors subject to OFCCP jurisdiction are required to
preserve “Any personnel or employment record made or kept by the contractor” for a period
“of not less than two years from the date of the making of the record or the personnel action
involved, whichever occurs later.” See 41 CFR §60-1.12. The OFCCP’s “Internet applicant
rule” further prescribes the records that federal contractors and subcontractors must maintain
related to hiring conducted through use of the Internet or related electronic data technologies
and provides guidance about which job seekers are considered to be applicants. See 41 CFR
§60-1.3. For its part, EEOC has not adopted any requirement that employers make or keep
personnel or employment records—only that such records that are made must be preserved for
one year from the date of the making of the record or taking the personnel action involved,
whichever occurs later. See 29 CFR §1602.14 (“Any personnel or employment record made or
kept by an employer [including but not necessarily limited to requests for reasonable
accommodation; application forms submitted by applicants; and other records having to do
with hiring, promotion, demotion, transfer, lay-off or termination, rates of pay or other terms
of compensation, and selection for training or apprenticeship] shall be preserved by the
employer for a period of one year from the date of the making of the record or the personnel
action involved, whichever occurs later.”)
2. The EEO-1 reporting guidelines were issued jointly by EEOC and OFCCP. EEO-1
reports must be filed by all private employers with 100 or more employees that are subject to
Title VII of the Civil Rights Act of 1964, and by all federal contractors or subcontractors with
50 or more employees that have contracts, subcontracts, or purchase orders of $50,000 or
more. Covered employers must provide sex, race, and ethnicity data on all full-time and parttime employees, excluding temporary employees. The EEO-1 guidelines can be found on the
EEOC website at eeoc.gov/employers/eeo1survey/2007instructions.cfm (“The term employee shall
not include persons who are hired on a casual basis for a specified time, or for the duration of a
specified job [for example, persons at a construction site whose employment relationship is
expected to terminate with the end of the employees’ work at the site]; persons temporarily
employed in any industry other than construction, such as temporary office workers, mariners,
stevedores, lumber yard workers, etc., who are hired through a hiring hall or other referral
arrangement, through an employee contractor or agent, or by some individual hiring
arrangement; or persons [except leased employees] on the payroll of an employment agency who are
referred by such agency for work to be performed on the premises of another employer under that
employers direction and control.”) [emphasis added].
3. 41 CFR §60-1.7(a)

 American Staffing Association
Record-Keeping and
Affirmative Action Rules
Page 6

4. See, for example, 43 FR 49249, Oct. 20, 1978; OFCCP transmittal 283, dated Aug. 14,
2008; OFCCP’s sample AAP available at dol.gov/ofccp/regs/compliance/pdf/sampleaap.pdf; and
EEO-1 Frequently Asked Questions and Answers, available at
eeoc.gov/employers/eeo1survey/faq.cfm (“OFCCP uses EEO-1 data to determine which company
establishments to select for compliance reviews. OFCCP’s system uses statistical assessment of
EEO-1 data to select facilities where the likelihood of systematic discrimination is the
greatest.”).
5. Government Contractors, Affirmative Action Requirements; Final Rule, 165 FR 68021
(Nov. 13, 2000) (amending 41 CFR Parts 60-1 and 60-2), at 68024.
6. 41 CFR §60-1.3; 41 CFR §60-1.12; 41 CFR §60-2.17(b).
7. 29 CFR §1607.1.
8. The UGESP can be found at 29 CFR part 1607 (EEOC) and 41 CFR part 60-3 (DOL).
The courts have held that the guidelines are not legally binding—see AMAE v. the State of
California, 231 F. 3d 572 (9th Cir. 2000), en banc ( “Although the guidelines are not legally
binding, they are ‘entitled to great deference.’”).
9. Agency Information Collection Activities: Adoption of Additional Questions and Answers
to Clarify and Provide a Common Interpretation of the Uniform Guidelines on Employee
Selection Procedures as They Relate to the Internet and Related Technologies, 69 FR 10152
(March 4, 2004) at 10155.
10. 41 CFR §60-3.2(c) (“Selection procedures. These guidelines apply only to selection
procedures which are used as a basis for making employment decisions. For example, the use
of recruiting procedures designed to attract members of a particular race, sex, or ethnic group,
which were previously denied employment opportunities or which are currently underutilized,
may be necessary to bring an employer into compliance with federal law, and is frequently an
essential element of any effective affirmative action program; but recruitment practices are not
considered by these guidelines to be selection procedures.”)