For example, a national recruitment ad agency service claims it “…has the ability to directly post to all state job boards…”

Another example is from a job distributor, which claims to be an industry leader stating: “The competitive advantage of our solution is that your jobs will be entered directly into a state’s system, whereas other services may rely on fax or email, both of which are time consuming and expensive, and both of which leave your organization’s compliance completely in the hands of the workers at the state agencies.”

The same job distributor says, “Clients who use (Product A) or (Product B) can access our existing network of State Workforce Agencies. Our alliances with two key technology providers, (Provider A) and (Provider B), will allow us to directly submit your jobs to 17 states. This is the optimal method of transmission.”

They continued, “Our investigations have shown that there is a good chance that job postings submitted in this manner will not be retained or used after they are received. The key benefit to working through (vendor’s) system is that jobs entered will be more likely to receive referrals from job counselors during the life of the opening, and your organization will be able to better prove compliance in the event of an audit.”

Over the last eighteen months, through our alliance with the National Association of State Workforce Agencies (NASWA), DirectEmployers Association has signed data-sharing agreements with forty states and at least four others are expected to sign in the near future. In states where we do not have data-sharing agreements and states that do not have the technology or manpower in place to take downloads directly into their job banks, compliance is achieved by electronic delivery of jobs to their local Career One Stop offices.

During this time we have worked, and are continuing to work, closely with state workforce agency program and technology staff. Through our experience in working with the states, we know that a majority of state workforce agencies are not currently in a position to accept job postings directly into their job banks. Web-delivery to only a few states is not acceptable for most companies needing OFCCP compliance. JobCentral’s fax and email systems function as a necessary alternative to web-delivery and both are electronic, highly automated, and inexpensive.

In working directly with NASWA and its member agencies we assure you that fax or email to a local Career One Stop is currently the only method of delivery, and therefore compliance, available in many states. JobCentral and NASWA continue to work closely with state workforce agency staff to ultimately have all state workforce agencies accept web-enabled downloads. Some states have requested delivery only by fax or email to their local offices and have no other method of accepting job postings. Obviously, if jobs cannot be entered directly into most state systems, which is contrary to the vendor’s claims, jobs sent to the states by the vendor are NOT more likely to receive referrals from job counselors, and your organization will NOT be in a better position to prove compliance in the event of an audit.

The OFCCP has clearly stated that, “A contractor remains responsible for ensuring that its job listings are received by the appropriate employment service delivery system, whether the contractor submits job listings directly to the appropriate employment service delivery system, or uses a third party to deliver the job listings on its behalf.”

When using a third party, the contractor must provide documentation that it submitted its job listings to the third-party, and that the third-party forwarded the job listings to the appropriate employment service delivery system (emphasis added). Documentation regarding the latter effort may include, but is not limited to, the following: an e-mail, fax, or regular mail transmission receipt from the third-party showing that the job listing had been forwarded to the employment service delivery system, or telephone records documenting communications between the third-party and the appropriate employment service delivery system.

JobCentral National Labor Exchange, through its VetCentral Federal Contractor Job Listing (FCJL) program, provides federal contractors an online, detailed, real-time report showing date, time, place and delivery confirmation of your federal contractor job listings. If, for any reason you are not using VetCentral, please make sure your job distributor or recruitment ad agency can provide a level of job delivery, reporting and confirmation that is fully compliant with OFCCP regulations.

The “world of blogs” where everyone instantly becomes an industry expert on everything regardless of their background, training, or in some cases lack of good judgement and common sense, has made the dissemination of mis- information about the closing of AJB and its impact on OFCCP compliance a daily event.

We do not claim to be OFCCP compliance experts. In fact, the deeper we got into the subject, the more we realized we needed to engage experts and knowledgeable consultants to lead us through all of the compliance- related issues. And that’s exactly what we did! DirectEmployers Association will be forever grateful for the invaluable contributions of David Morman and James Vollman, workforce experts and former key managers at the U.S. Department of Labor. Both have extensive experience managing AJB and working with various government agencies such as VETS, OFCCP, DoD, and others.

I am extremely proud of the leadership role DirectEmployers Association has taken in developing a low-cost, employer-funded replacement for AJB and providing OFCCP compliance for our member companies. It would not have been possible without the professional guidance and expert advice we have received from these two outstanding gentlemen.

DirectEmployers’ annual membership fee is each employers’ “fair share” for supporting a solution they own, manage, control costs and call their own. Is there a better alternative? Despite what some might think, it defies logic to think any organization, whether government, commercial or nonprofit, can or will offer these services for free. The federal government did not provide AJB for free. Companies have paid up to $27 million tax dollars per year for the government to operate AJB — it is not an inexpensive proposition!

Although most states accept job postings on their web sites and welcome listings from in-state employers, many states have neither the manpower nor fiscal resources to accept multiple job feeds or large amounts of data from all employers. Our approach is to work through proper channels in cooperation with state workforce agencies to ease their burden while helping member companies reach our nation’s workforce and remain OFCCP compliant. In fairness to the states, we have not requested, or required, an exclusive agreement to do this. While we are very pleased that states have chosen to work with DirectEmployers Association (and JobCentral), each state is free to accept jobs from any other source they deem appropriate.

Through the support of its member companies, DirectEmployers Association provides all services previously provided by AJB at no cost to member and non-member employers, job seekers, states, and veterans. In addition, all federal contractors can meet OFCCP job posting requirements by posting single jobs to VetCentral at no cost.

Membership fees allow the Association to provide these services and many other services and conveniences, available to member companies only, that are over and above those previously provided by AJB. In addition to research, networking, Affirmative Action, and advocacy, these services include indexing jobs from member-company corporate web sites, distribution of jobs to over one thousand JobCentral network sites including Google, other Internet search engines, diversity, military and alumni sites, distribution of jobs as currently required (or as may be required in the future) by VEVRAA and the Jobs for Veterans Act and, through VetCentral, extensive recordkeeping, audit trails, and on-demand reports for OFCCP compliance.

Failure of OFCCP to issue final rules implementing the Jobs for Veterans Act of 2002 has created some confusion about how employers with federal contracts are to comply with the “mandatory listing” requirements of 38 USC 4212 and its predecessors. The issue arises particularly for those who are using America’s Job Bank as a compliance vehicle something permitted by current regulations (41CFR60-250.5 Paragraph 2) but which will become unavailable beginning June 29th when the Labor Department terminates AJB.

The lack of final rules has resulted in significant speculation about how compliance can be achieved in the post America’s Job Bank world. The answer to that question is not simple and depends on two primary facts – 1) whether the contractor has any pre-December 1, 2003 contracts still in effect, and 2) whether OFCCP has issued final rules. There is a significant “hope” in the market that simply listing jobs with State Job Banks will be sufficient. As we explore the regulatory landscape, we believe that hope could be revealed as wishful thinking more than anything else.

Post AJB Compliance with the Mandatory Listing Requirements

It would be difficult to read the entirety of the current and proposed rules and come away with a reading that says listing with a State Job Bank would be sufficient to guarantee compliance. Perhaps OFCCP will issue such regulations but they have not yet and a look at the statute itself would make that option unlikely.

There will be two sets of rules at play. The first set which applies now to any company with a contract for more than $25,000 that was signed before December 1, 2003 will be in effect as long as those contracts are active (which could be several years). Those rules apply not just to jobs covered by the contract but to all jobs in the company (which a few exceptions for top executives and very short term jobs). See 41CFR60-250.5, Paragraph 2.

Those rules require that the listing be done “at an appropriate local employment service office of the state employment security agency wherein the opening occurs.” They allow for the AJB listing as compliance; however, when AJB ends on June 29th the only compliance method under the current rules will be listing with a local office.

A company which has no pre 12/1/03 contracts will not be covered by this rule, provided that OFCCP actually issues final rules for the Jobs for Veterans Act. If OFCCP does not issue the JVA rules by June 29th, AJB’s last day, all companies will need to comply with the current rules and the only compliance method will be listing at “at an appropriate local employment service office of the state employment security agency wherein the opening occurs.” Companies with pre-12/01/03 contracts will be covered by the old rules as long as those contracts are in place. The plain language of 41CFR60-250.5 Paragraph 2 covers all that company’s jobs. OFCCP in its notice of proposed rule making stated: “Contractors with contracts entered into both before, and on or after December 1, 2003, will be subject to both the requirements found in part 60-250 and the requirements proposed for part 60-300.” (Page 3353 of the Federal Register for January 20, 2006).

The proposed rules contain the potentially unclear phase “appropriate employment service delivery system.” The words themselves may be unclear; but in the context of Title 38 they have a fairly established meaning. Section 4104 of Title 38 which establishes the LVER (Local Veteran Employment Representative) program states in paragraph (d) “Each local veterans’ employment representative shall be administratively responsible to the manager of the employment service delivery system and shall provide reports, not less frequently than quarterly, to the manager of such office and to the Director for Veterans’ Employment and Training for the State regarding compliance with Federal law and regulations with respect to special services and priorities for eligible veterans and eligible persons.”

The movement of Wagner Peyser services into One-Stop Career Centers in many States created the shift in language (from employment service office to employment service delivery system) but the listing is now and always has been to facilitate the employment of veterans by having the local office and the DVOP/LVER “work” the job order on behalf of their veteran customers. That rationale is also contained in the current and the proposed regulations in 60-250.84 and 60-300.84.

The Jobs for Veterans Act itself speaks to that rationale in its own statutory language. 38 USC 4212 Section (a)(2)(A) requires the mandatory listing by federal contractors. Section (a)(2)(B) requires the employment service delivery system to provide priority referral of qualified veterans to those jobs. The mandatory listing is not so that the general public can see the job but so that qualified veterans can get priority referrals to those jobs. That priority referral process has been and continues to be a “local” process which involves staff, either general purpose or DVOP/LVER, that “work” the job orders on behalf of the qualified veterans.

Perhaps most troubling for the “hope” that listings with State Job Banks alone will satisfy is Section (a)(2)(C) of 38 USC 4212 which requires the “employment service delivery system” that has received that listing to “provide a list of such employment openings to States, political subdivisions of States, or any private entities or organizations under contract to carry out employment, training, and placement services under chapter 41 of this title.” If Congress had intended that a compliant listing could be made at the State Job Bank level, there would be little reason for the addition of States to the list of entities with whom the job listing should be shared.

It is also useful to note that requirements of the Jobs for Veterans Act are not self-implementing. The introductory paragraph in 38 USC 4212 (a)(2) states “the Secretary of Labor shall prescribe regulations requiring” which is followed by the particular statements in paragraphs A, B and C. OFCCP itself recognizes need for the new rules before the JVA requirements become effective. It states in answer to the question “Does listing a job with America’s Job Bank (AJB) satisfy mandatory listing for veterans?”

Currently all covered contractors may list their job openings with either America’s Job Bank or with an appropriate local employment service office. After OFCCP promulgates a new VEVRAA regulation implementing the Jobs for Veterans Act (JVA), covered contractors with contracts entered on or after December 1, 2003, will be required to post their jobs at an appropriate employment service delivery system. The Department of Labor is working on a new option to allow contractors to meet both the current and the revised mandatory job-listing requirement. A new web portal, the Veterans’ Job Clearinghouse, will automatically post listed employment openings with the appropriate employment service delivery system while also giving contractors the option of continuing to list job openings on America’s Job Bank. But until the final regulations implementing JVA amendments go into effect, contractors may continue to fulfill their job listing requirements by using either America’s Job Bank or their local employment service office. (See http://www.dol.gov/vets/contractor/main.htm#A-4)

The Veterans’ Job Clearinghouse (VJC) mentioned above was designed to deliver the job openings, then posted on America’s Job Bank, to DVOP/LVER staff at the local offices not to the State Job Banks. The Labor Department abandoned the VJC effort, in part because it was dependent on AJB; however, DirectEmployers Association is using the Veterans’ Job Clearinghouse approach of local office delivery in its VETCentral compliance tool and has engaged the vendor for the VJC to build VetCentral.

The DirectEmployers Association Approach

DirectEmployers Association, through JobCentral National Labor Exchange and VetCentral, will approach compliance as requiring delivery of the job listing to the local office which delivers Wagner-Peyser labor exchange services that is nearest the hiring location. That approach is based on DirectEmployers’ understanding of the current and proposed rules and the belief that it is the best interest of its member companies to provide compliance that is conservative rather than speculative.

Some companies may hope that listing with a State job bank, which does not generate compliance with the current rules, would now generate compliance with the proposed rules. But that hope does not seem to have much basis in the statute, the regulations themselves, or the practice of the employment service.

Things to consider –

1) The proposed rules for post 12/01/03 contracts are not final and OFCCP has not stated when they will issue the final rules.

2) The current rules are in effect for all federal contractors until the new rules are issued and will cover any federal contactor with a pre-12/01/03 contract. Those rules are not at all unclear — on June 30th the only acceptable compliance method will be listing with a “local employment service office.”

3) AJB does not now deliver job listings to all States. Less than half of the States take the current AJB download of jobs. That number is not likely to improve when AJB ends. A good example is Alabama where major defense contractors have large facilities does not take the AJB feed now. It will be difficult for anyone other than DirectEmployers to provide compliance under even the “hopeful” reading of the proposed rules given that reality.

4) We know of no other approach that provides compliance for companies that must also comply with the current rules in 41CFR60-250.

DirectEmployers Association is taking the conservative approach to compliance (usually the way most company lawyers approach the issue) and making sure member companies are covered whatever the eventual ruling and interpretation of the rules might be. While on June 30th, DirectEmployers will be downloading jobs to more States than currently take the AJB feed; it will not have 100% coverage of all States. DirectEmployers will provide compliance by delivering its member company jobs to the local offices in all the States.

DirectEmployers Association member companies will not be surprised. Companies depending on “hopeful” interpretations of the law and regulations may be.

Hats off to all members of the International Association of Employment Web Sites (IAEWS) Code of Ethics work group for their outstanding work and accomplishment – the first ever Code of Ethics for the online employment industry.

When Don Ramer and Ted Daywalt are involved, you know good things are bound to happen. Throw in relative newcomers Sunny Mokha and Manuel Francisci, along with Eric Shannon who has done outstanding work with LatPro, add the leadership of Dan Honig and you have a dynamic group.

Again, hats off to the whole group for doing what many, myself included, thought was impossible. Great work guys and thanks for making it happen!

The primary reason is to keep our member companies aware of what JobCentral is doing and why we are doing it. To give them an accurate assessment of our progress. It is a subtle way to counter-act the mis-information and biased opinions often put out by chest-thumping “pundits” in our industry.

2. What do I prefer to blog about?

Company business and activities only. I wrote out the purpose and objectives of the blog prior to putting it online — and I try to keep it within the scope of the original purpose and objectives. I don’t want it to ever become a vehicle for responding to everything I see or hear or that I disagree with or personally do not like.

3. Where do I receive my blogging inspiration from?

Cheezhead is my idol!!!

4. Who do I write my blog for?

Member companies, prospective member companies, our executive committee, and our board of directors.

5. How much blogging has impacted DirectEmployers Association?

Blogging has been a very effective way to communicate quickly to a lot of people. The response and feedback to my blog and to our sponsorship of Joel Cheesman’s blog has been very positive. One of our best marketing moves was the decision to sponsor “Cheezhead’s” blog. Every time he goes to an industry conference or writes something witty we get a steady stream of calls and email messages — so far they have all been good!

6. When do I find the time to blog?

Primarily at the end of the day. It is kind of a reflection of the day’s events and an answer to the question, “What should I tell our member companies about what we did today?” I do not feel the need to post something every day.

Why is a National Labor Exchange important?

The USDOL’s decision leaves the U.S. as the only highly-industrialized nation in the world without a publicly-funded national labor exchange. This adversely affects: 1) companies of all sizes that cannot afford the cost of commercial job boards which charge as much as $495.00 to post a single employment ad; 2) local and national governments in times of national emergencies affecting our workforce; 3) economic development which depends on an inexpensive way to reach an area or regional workforce and relies on a national employment system for labor market availability and information; and 4) Job seekers. Research tells us that employers place less than 30% of their jobs on commercial job boards because of the high cost of posting to traditional job boards

What will happen to AJB’s assets when it is shut down?

AJB’s assets are government property and will not be available to any other site. The replacement of America’s Job Bank is in no way dependent on AJB’s assets. The Department of Labor has taken the appropriate steps to make sure the assets of AJB are not misappropriated in any way.

How will JobCentral National Labor Exchange provide traffic?

Through JobCentral’s Network of over one-thousand diversity, military, alumni and general purpose job sites, it drives as much or more traffic to employers web sites than is received by many of the major commercial job boards. JobCentral National Labor Exchange is available to all employers, in all occupations, in all industries.

Will small employers feel comfortable with large companies managing a national labor exchange?.

Yes, because the large organizations are providing a no-cost national — yet community-focused — labor exchange to replace America’s Job Bank. The cost of inaction by employers would be far greater than the cost of supporting a national labor exchange site. Employers of all sizes need an affordable, national labor exchange to create an efficient labor market, assure compliance with state and federal employment laws such as Affirmative Action, Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA), and Jobs for Veterans Act compliance, and provide proper privacy and security for both employers and job seekers.

Can Jobcentral National Labor Exchange provide OFCCP compliance?

Yes. DirectEmployers has published a White Paper containing a discussion of the current law, federal contractor job posting requirements, the impact on employers meeting their legal requirements with the scheduled closing of AJB and clearly defining the solution we have developed; 1) this solution provides employers compliance regardless of the delivery requirements defined in the new OFCCP regulations which are expected to be published this month; 2) DirectEmployers has worked over one year with the assistance of Jim Vollman who started and managed AJB when he was with the Department of Labor and David Morman, who developed and managed AJB and other online products for USDOL.; 3) We also contracted XPAND Corporation, which designed and developed the “Jobs for Veterans Clearinghouse” three years ago in cooperation with VETS, USDOL, and OFCCP, to develop the software to deliver jobs for veterans to each state, Disabled Veterans’ Outreach Programs (DVOP’s) or Local Veterans’ Employment Representatives (LVER’s) as required for compliance; and, 4) JobCentral has entered into an Alliance with The National Association of State Workforce Agencies (NASWA), which represents all 50 states plus the District of Columbia, Puerto Rico and Guam, to provide online employment-related services to the states to replace the functionality previously provided by AJB.

Have Government Contractors been required to use AJB?

Government contractors have never been required to use America’s Job Bank! They used AJB because it provided the easiest way to be compliant with job posting regulations. This is the same reason they will use JobCentral National Labor Exchange or any other system that provides compliance without them having to post their jobs to each individual state. A common misconception is that posting jobs to AJB currently provides compliance. This is simply not true. Over the last few years many states have stopped using AJB because of its poor technology and poor performance. OFCCP, as a matter of enforcement discretion, is presently allowing federal contractors to fulfill their job posting requirements by posting to AJB.

Does the federal government have a responsibility to provide employers a job-posting solution?

The federal government has no obligation to provide employers a solution for OFCCP job posting requirements. The government has no statutory responsibility to provide employers with a way to post jobs to the states or anywhere else for compliance.

Will OFCCP make compliance possible by simply publishing an opening on the company website?

The OFCCP, as a matter of enforcement discretion, is presently allowing Federal Contractors to meet their job listing requirements by posting employment openings with either America’s Job Bank or directly with the appropriate local employment service delivery system until the amended regulation becomes final. We do not expect the OFCCP to require anything less than posting to state web sites when the final regulations are published.

Why Should Employers Support a National Labor Exchange?

Companies working together through a non-profit Association to create a national labor exchange when the U.S. is facing a severe labor shortage and the cost of posting jobs and searching resumes on commercial job boards continues to sky-rocket says it all. It’s all about creating labor market efficiency where none now exists.

When we were negotiating our recent agreement, Joel kiddingly (I thought) said more than once, “Remember, Cheezhead don’t change for nobody.”

I have already received twenty-two emails this morning reminding me how true it is that “Cheezhead don’t change for nobody” – as evidenced by his first video sponsored by JobCentral.

The “Cheezhead” keeps marching to his own drummer and dancing like nobody’s watching. “Cheezhead don’t change for nobody” — and that’s a good thing!