Last week we looked at how the Affirmative Action regulations’ and OFCCP define an “applicant”, or more specifically, an Internet Applicant, under the Internet Applicant Rule. (Click here if you missed that.) It comes with significant recordkeeping requirements. If you are a federal (sub-) contractor, it therefore warrants your full attention. Suppose you, choose to use software to track individual applicants, resumes and other phases of pre-employment screening, aka an Applicant Tracking System (ATS). You could still encounter problems during OFCCP audits, though. Fines and penalties can be in the tens of thousands of dollars. You could even be debarred from working with the federal government. What’s causing these problems, and what can you do to ensure your practices –and your ATS– withstand OFCCP scrutiny? Join The EmpLAWyerol-ogist after the jump, and let’s see if we can’t get some ideas.
(image from recruiteze.com)
We know that under the Internet Applicant Recordkeeping Rule, as a federal contractor, you must determine each applicant’s race, ethnicity, and sex . If you have 150 or more employees and contracts of $150k or more you must retain all application or resume responses through internet or related electronic data technologies for two years starting from the later of the date you create the record or make the hiring decision. If your numbers are below that threshold, the retention period is one year. For contractors involved in an audit or litigation, the retention period will be for at least the duration of the audit or lawsuit. If you do not accept internet applicants, you must track everyone who applies for the job in question, whether or not they meet the basic job qualifications and whether or not you were seeking applicants at the time. Let’s note a few more points, before moving on:
- This Rule applies only to applicant tracking for AA purposes. You can have more stringent requirements for actual hiring decisions;
- Passing tests is not a basic requirement. If the applicant can “fail” the procedure in question, the OFCCP considers it a test. You must solicit race, ethnicity and gender information for all applicants for whom you use tests and test results in the screening process, even for job seekers who are not “Internet Applicants”, and even for those later determined not to have the basic qualifications.
- You need not solicit demographic information connected with tests you don’t use as a selection procedure until after you determine the applicant meets the basic job qualifications. In all cases, however, you must retain copies of tests and test results for either the one or two-year retention periods.
As you probably guessed, there’s more. Once you consider substantive information about qualifications from the job seeker you must keep all relevant records, even if you later determine that the job seeker does not meet the job qualifications. Such records include without limitation applications, online resumes, internal resume databases, external resume databases, records identifying job seekers contacted regarding their interest in a particular job, and job advertisements or postings.
Regarding internal resume databases, you must have and retain: a) each resume added to the database; b) the date you added each resume; c) the position for which you made each database search; d) the date of and search criteria used for each search and e) records identifying jobseekers contacted regarding their interest in a particular position. You must keep these resumes even if these candidates are not “considered” as defined above.
For external resume databases, you must have and retain records of: a) the position for which you made each database search; b) the date of and search criteria used for each search; c) the resumes of job seekers identified during the search who meet the basic qualifications for a job and that you considered contractor, regardless of whether s/he qualifies as an Internet Applicant; d) records identifying job seekers contacted regarding their interest in a particular position. Unlike resumes in an internal database, resumes of candidates not considered that are only in an external database that do not become part of an internal database are not subject to a retention requirement.
The OFCCP does not specify in which form you must maintain records related to internal and external resume databases. Many contractors use an electronic ATS, in order to have quick, easy access to all required information. If you do so, these records are subject to the above-mentioned one/two-year retention requirements. You must also retain records of a) basic job descriptions and qualifications for all open positions; b) all applicants “considered”, including those found on internet searches; c) data management techniques to reduce the number of applicants considered; d) all candidates, including passive and semi-passive ones, contacted about their interest in a position, e) applicant flow data; f) data for adverse impact analysis. By itself, however, having the ATS, and relying on vendor assurances that is OFCCP-compliant is not enough. It is not a “set it and forget it” tool. You must still make sure it meets OFCCP requirements, as the ultimate responsibility for compliance rests with you. Some of the more common issues that ATS’s, for various reasons, may not address, include:
- Hires missing from the applicant log/ATS;
- Applicant log data, such as gender, race, ethnicity of plan location, job group or job title differing from hire log data;
- Applicants not meeting “Internet Applicant” definition are included in the adverse impact analysis;
- Applicant for positions not yet filled in the period being analyzed being counted in the applicant pool for adverse impact analysis;
- Disposition Information (i.e. was the person hired, if not reasons for not hiring) unavailable, inaccurate or vague;
- Lack of proper documentation on applicants (including interview notes);
- Unrestricted access to ATS, which means data can be deleted or altered;
- Not ensuring that all candidates apply properly before considering them;
- ATS and Disposition Code Problems (too many, too few, too vague);
- Not used (in effective way) to limit applicant pool;
- Not applied consistently;
- Recruiters relying too much on “favorite” codes;
Here are some additional steps to consider:
- Use appropriate, clear and concise disposition codes and break them into 5 main categories, such as a) Doesn’t meet Basic Qualifications; b) Candidate not interested; c) Company not interested; d) Candidate declined offer; e) Hired. You can also use subcategories, but avoid having too many.
- Avoid vague disposition codes, e.g. “poor fit”, “not selected” “phone screened”, “interviewed” “disqualified” “more qualified applicant selected”.
- Develop a written definition for “Internet Applicant”;
- Establish specific policies and procedures for determining which expressions of interest will be considered (applicants who do not follow a specified application procedure do not have to be “considered”) and for internal and external searches and require tracking at all stages;
- Decide what if any data management techniques to use;
- Establish basic qualifications for all positions;
- Train managers and recruiters on all definitions, objectives, policies and procedures, including what must be tracked and retained, and monitor compliance;
- Ensure that the ATS addresses AA and applicant tracking and recordkeeping requirements, including limiting the ability to add information manually. Train managers and recruiters on the specific ATS being used.
OK, that should be enough to hold you for now! See you next week!
Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
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Click here to register for my webinar, on Interview Questions and Pre-Employment Screening on Feb 14, or here to register for my webinar on understanding the overlapping employee leave provisions under FMLA, ADA, Workers’ Comp and USERRA on Feb 15.
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