It is common knowledge that EEO compliance has developed into an extremely complex and sometimes controversial process. In just the last 14 years alone we have witnessed an endless stream of changes to the expectations of contractors including:
- Changing from eight (8) to two (2) availability factors
- The brief, rocky visit of the EO Survey
- The as yet, unrealized threat of multiple regression as a tool to find compensation disparities
- The ongoing struggles associated with the definition of an Internet Applicant
- The change from quick and “easy” OFCCP audits to rigorous and painful EEO investigations
However, even after all this change, including the recent introduction of a complete overhaul to VEVRAA and Section 503 or all the attention being given to compensation, the biggest, and most costly, issue continues to be record keeping associated with hiring.
My concern is that while record keeping (particularly in hiring) is a topic that has been endlessly discussed in the public forum, the most significant problems remain, and the risk of significant cost to the contractor is still there. In fact, one of the reasons I chose to write this was not to remind people of an ongoing issue, but to make perfectly clear that with the significant expansion of record keeping requirements under VEVRAA and Section 503, I am certain the problems for contractors is on the verge of getting worse.
Now that we have established the issue, let’s look at two functions of recruiting that often result in record keeping issues that can, in turn, result in OFCCP audit red-flags.
An Evergreen requisition is one that typically remains perpetually open for high-turnover, or high volume positions, that require continuous hiring. Contractors like them and deem them necessary because they are simple and efficient. Unfortunately, one could argue that the use of Evergreen requisitions creates a compliance risk for contractors. The reason is that as the volume of applicants and hires increases across a broad spectrum of time, the data becomes more and more difficult to analyze and it becomes vulnerable to statistically significant results. Larger pools of data will draw scrutiny in an audit, and once OFCCP sees more than two standard deviations in an analysis they have an indicator of possible discrimination to investigate.
Since Evergreen requisitions are a reality of life and abandoning them would be a painful option for many contractors, let’s look at options. The idea is that hiring managers can make adjustments to Evergreen requisitions to prevent them from being a burden to compliance. Note that in most instances, companies accused of hiring discrimination did not admit guilt so much as admit a lack of ability to defend themselves, given a lack of data to support their position. That statement should provide leadership with enough information to grant the resources necessary to overlay hiring with the necessary compliance tools. Here are a few ideas to help users maintain control of their data:
Pipeline Requisitions and Candidate Pools
- Close and renew the requisition on a regularly scheduled basis. If you truly have steady applications and hires occurring, close the requisition quarterly (or at least semi-annually) and have people re-apply to the new version. It will help clean up the active pools and allows you to analyze smaller sets of data under shorter periods of time. This is especially useful if you have past issues.
- Be sure to collect requisition numbers and dispositions (step and status) in your applicant and hire data. This will help you analyze beyond the annual sum totals.
- Invite job seekers to re-apply to the updated requisition. This will help clear out the candidates who are no longer interested in the position. It will help if the contractor focuses on re-inviting candidates who have continued to express interest in the job and not just invite all en masse.
- Get clear job related screening questions out in front of the process. Ask if people meet your basic requirements.
- You can also ask applicants’ willingness questions such as, is he/she willing to work a certain shift or accept your pay requirements or travel, etc. So long as they are legitimate, defend-able requirements.
- When recruiting for multiple jobs from one requisition, be careful. If a person applied to a general requisition they could end up belonging in more than one applicant pool.
- Try to avoid multiple plan locations under the same requisition. If candidates are linked to multiple sites, but hired at one location, do you know which locations considered them, and if they need to be counted in more than one plan?
- Remove any applicants who applied after the last hire within the requisition. If they re-apply for the next opening they would be linked to that requisition.
The creation of a pipeline requisition, or a pipeline of candidates, may be seen as the same concept as Evergreen recruitment, but for the purposes of this discussion I am separating the two by identifying Evergreen requisitions as continuously hiring, with pipeline development as future openings without current opportunities.
Creation of a pipeline requisition, or a pipeline applicant pool, is a valuable tool in the recruiters’ arsenal and it is used widely for obvious reasons. A recruiters’ job is to find talent, and they need to find it as quickly as possible. So, when a job opportunity opens up, a pipeline of “pre-approved” applicants greatly increases a recruiters’ chances of filling the job to the expectations of the contractor.
To prepare for an opening, recruiters want to create a database of future candidates that they can call upon when a job opens up to expedite the process of getting applicants into the pool for immediate consideration. The faster that job is populated, the more successful recruitment is considered to be.
A candidate pool, or “pipeline,” can be created many ways, including:
- Retention of qualified candidates who were not selected for a filled job
- Searching social media, such as LinkedIn, which now has detailed recruiting tools
- Outreach through online job boards and various external sites
- Other options including - job fairs, colleges, associations, competitors, military, conferences, company events and referrals
- Internal promotion candidate pool
Now turning our attention back to compliance, once again we have a possible conflict of interest when it comes to record keeping and the use of a popular recruiting tool. In this case, the aforementioned pipeline recruiting effort is an activity that can create issues for compliance staff. The concern is simply, how does maintaining a database of pipeline candidates affect the data that needs to be represented in my affirmative action plan (AAP)? At this point, any plan developer knows that defining who is and who is not an applicant is possibly the biggest challenge the contractor faces. Why? Because the data collection encompasses detailed regulations, involves staff at multiple levels, and creates rules that require significant effort to collect, all resulting in a process made slower by the need for compliance. I am certain that if we asked a room full of the staff involved (recruiters, hiring managers, compliance and systems staff) whether or not candidates stored in a file for potential job openings are applicants under the regulations, we would receive a lot of different answers.
There are important decisions to be made regarding how to manage the data pool in relation to the affirmative action plan. Do these records need to be in the applicant data or not? Naturally, the answer is everybody’s favorite response…“it depends”. For example, the following questions may be asked about identifying which job seekers in the pipeline should be in the AAP, per the definition of an applicant, and the answers may not be clear.
- Question: Pipeline candidates can’t be an applicant unless they were considered for a job, correct?
Answer: Well, they were reviewed and considered by the recruiter so they pass at least one critical step in the definition of an internet applicant.
- Question: Are job seekers in the pipeline considered qualified as part of the definition of an internet applicant?
Answer: I would think they are qualified if the recruiter has reviewed and elected to keep the file in the pipeline. However, it’s not certain that a recruiter has reviewed the details of the job seeker to determine if they are qualified. It can continue to be debated that pipeline candidates are applicants under the rule.
- Question: They can’t be an applicant because they didn’t apply for an open job, right?
Answer: Wrong, the definition of an internet applicant does not use the word “open” in the text.
- Question: If the candidate was rejected for a job they applied for are they still an applicant in the pipeline held by the recruiter if the same job becomes available in another requisition?
Answer: No, they would not be an applicant again until they were considered for the new opening.
Now that we have clarified a few of the difficult questions related to pipeline development, let’s move into tackling the reality of using them. Pipeline recruiting is not going away, so what can a contractor do to minimize risk and keep the hiring recruitment machine moving?
Contractors want to collect the data used in hiring for every AAP they develop, so the plan should be to make sure that records stored in a pipeline database that meet the definition of an applicant make it into the appropriate AAP.
What contractors should do:
- Contractors always want to make sure they have diverse candidate pools and a non-discriminatory selection process. This should result in the AAP not showing statistical significance in the results of the analyses. This is the place to start because if the data is accurate and the results show positive results, then the contractor can focus on building and maintaining good processes.
- If the plan results show indicators of statistical significance, contractors need to root out the cause(s). Examining how data is collected during the entire hiring process (e.g., self-ID form, application, applicant tracking system, HRIS, etc.) is a critical element of affirmative action planning.
- Building a pipeline – note that any record that meets the definition of an applicant will need to be included in your plan. Reserve candidates who are not considered should not be put in the AAP.
- Building a pipeline - maintain specific characteristics for candidates. Link records to a single job and a single location. If you don’t make the record specific you could be opening yourself up to multiple issues.
- Building a pipeline - when a job opens, invite selected candidates who meet basic qualifications to apply to the specific opening. Remember, not all records should get dropped into the AAP like a dump truck. If the candidate chooses not to apply after you invite them based on an open requisition, they can be considered as withdrawn and not an applicant.
Hopefully this discussion helps Federal contractors develop strategies to closely monitor the information being used in the selection process. If you have any questions please contact me or our affirmative action consulting team at OutSolve. We can be found at www.outsolve-hr.com
or (888) 414-2410.