The following post is from a recent conversation I had with Candee Chambers, during which we discussed the importance of understanding the fundamentals of compliance as a recruiter, and what techniques recruiters can use to manage large applicant flows.
Candee: John, it looks like we may have opened up “Pandora’s Box” when you, Mike Bazinet and I led four discussions at DEAM16 about how and where recruiters may assist with OFCCP compliance duties. Members have been calling and writing with follow-up questions ever since and also asking for assistance as to the design of their recruitment systems. So, I have been keeping a log of the questions and thought we might share your and my thoughts more broadly with all of our Members about what we at DirectEmployers are calling Compliance Through Recruitment (CTR™) questions.
Candee: Here is an inquiry, which raises a popular question about how to manage large applicant flows:
“You and John recognized the tension between the recruiter’s instinct and desire to bring a large number of qualified recruits to the company for potential acquisition and the instinct and desire of defense lawyers to shrink the Applicant pool as much as possible to avoid the “Law of Big Numbers” to prevent problematic statistical disparity discrimination cases from resulting. What are some techniques recruiters may appropriately use to shrink their applicant pools?”
John: OFCCP coined both a phrase and a concept in its Internet Applicant Rules to help recruiters to shrink Applicant pools, especially those who were searching Internet job boards and dragging down large numbers of resumes. OFCCP called the concept “Data Management Technique” (“DMT”). Recruiters may use DMTs to shrink applicant pools regardless of whether they source expressions of interest from the Internet, from paper applications or from web-based electronic profiles. As a former recruiter, Candee, what are your favorite DMTs?
Candee: We used a couple of DMTs: the obvious one is to select from among the first 25, or first 50 expressions of interest, etc., depending on the number of job seekers who applied for the specific position. What that DMT did was to cause the Contractor to NOT “consider” the other expressions of interest, so they are not “Applicants” the way the law defines that term. We also created what we referred to as “Stratified Random Sample DMTs” where our HRIS folks developed a program to pull the same percentage of females and minorities who applied for the position to our random sample. This was extremely useful with large pools especially when we had placement goals to meet.
John: The key to any DMT is that it causes the Contractor to manage large pools of job seekers without “considering” all of them and thus making them all “Applicants” [and if the candidates also meet the other three required elements necessary for a job seeker to rise to the level of an “Applicant” (i.e. expressed interest in the appropriate way for an available position filled from among candidates similar to the job seeker; had the “basic” (i.e. minimum) qualifications for the positon; and did not withdraw from consideration for the position.]
John: First, each Government contractor needs to divide up duties and determine who within the company is going to document the treatment of EACH person who expresses interest. Most of my clients find that their recruiters are not only helpful to document the process, but often find that they are necessary to document the process because the recruiter is the only one perhaps knowledgeable about why the company rejected the candidate.
Second, the contractor absolutely needs to train (and periodically retrain) all involved in the documentation process so they understand the “disposition codes” the company has developed, to “cross-calibrate” all documenters so they all understand and apply the codes in precisely the same way (differential application is the death knell of well-designed codes since OFCCP will twist different understandings into “differential treatment” of Applicants and invalidate the code as properly documenting either:
- who is “Not an Applicant,” and
- documenting as to true Applicants either:
- the legitimate non-discriminatory reason(s) for rejection, or
- any Offer of employment made).
Third, contractors should periodically check to determine if documenters are applying the disposition codes and doing so properly and in common fashion with other documenters. I call these “quality control dipstick readings.” (I have repeatedly found it to be a HUGE mistake for compliance managers to think documenters understand perfectly the documentation architecture the Headquarters compliance staff has typically, painstakingly and thoughtfully created or to think this critical documentation is faithfully occurring contemporaneously with the processing of the expressions of interest (documenters get sick, go on vacation, get suddenly “crazy busy” and fall behind on their paperwork; and/or substitute employees without proper training fill in and do not know that documentation is one of their duties; and/or documenters run into recruitment scenarios they do not think the Disposition Codes anticipate so they improvise, or the recruitment process changes without corresponding change to the Disposition Codes, etc).
Candee: One very important part of the process, especially in the development of proper Disposition Codes, is the inclusion of the Talent Acquisition team AND the compliance team. This is exactly what I try to cover in my “Who is an Applicant?” training. If these teams do not work together, the understanding and the collaboration will just not work. The compliance team must count on the Talent Acquisition team to disposition all candidates appropriately so the entire organization is not at risk.
I always wanted my documentation team to document three things. Is this still good advice given the ever evolving case law regarding “Who is An Applicant?” Here are the three Applicant documentation protocols I have always followed:
First, I recommend that documenters parse who is an “Applicant” from who is “Not an Applicant.”
Second, from among the Applicants, contractors must identify the “legitimate nondiscriminatory reason(s)” for rejection.
Third, I wanted to identify all “Offers” (since “Offers,” even if rejected, count as “Hires” under Executive Order 11246. If I remember correctly (with all my NELI training!) that is the OFCCP v. Jacksonville Shipyards case decision, right?).
John: You have it exactly right, Candee! If contractors parsed expressions of interest that way, AND IF the contractor had well designed Disposition Codes, OFCCP would have few, if any, failure to hire cases. Unfortunately, however, few contractors have Disposition Codes which will withstand searing legal scrutiny, in fact, although every contractor believes it has “bullet-proof” Codes! Let me suggest that a Best Practice would be to model Disposition Codes to follow the legal framework…just the way you spoke it above. Disposition Codes to parse whether:
- the expression of interest is an “Applicant,” or “Not an Applicant;”
- the legitimate nondiscriminatory reason(s) for rejection; and
- the company made the Applicant an “Offer” of employment (regardless whether accepted or rejected)
Candee: Many contractors have Hiring Managers who still “require” the recruiters to send forward for further review all the candidates the recruiter has sourced. This approach then causes the Hiring Manager to then make the decision who to review further and document the rejections rather than to harness the time of the recruiter to pre-screen job seekers and document the reason(s) for not sending forward candidates. That is a very scary proposition in my opinion because it puts so much work on the Hiring Manager. What are your thoughts on this methodology?
John: I share your concern based on raw experience in OFCCP audits. Having said that, I think it is important to leave it to companies to design selection processes which work for them. Shedding pre-screens or forcing all of the selection and documentation tasking on the selection official may work for companies, particularily if they do a good job managing the volume of their applications or have an appropriate ratio of selection managers to applications. However, what I see in OFCCP audit file after audit file is that HR is slimming down to dangerous levels of low staffing and selection officials just do not have the time these days to do it all: review applications, interview, document, track Applicants through the selection process and then on-board the candidate. Our office sees a file a week, at least, with missing, incomplete and erroneous applicant logs and disposition codes simply because the selection manager became overwhelmed and could not keep up with contemporaneous documentation protocols. Do whatever will be effective to allow proper documentation, not what seems like it could work under ideal laboratory conditions.
Candee: Here’s another interesting tidbit: My judgement would be that every company ought to have either a DMT whenever there are more Applicants per available job than the company needs to fill the job, OR a plan to shrink the volume of Applicant Flow.
John: I could not agree more. That is very sound advice, Candee. The other thing that occurs to me is that we really need to plan another battery of “Who is an Applicant?” and “How to Build Applicant Systems” presentations at DEAM17 next year.
Candee: Done and done! See you and hopefully all our readers in Indy next May!
THIS COLUMN IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE CURRENT LAW AND PRACTICE RELATING TO OFCCP. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. COMPANIES OR INDIVIDUALS WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL.
Reminder: If you have specific OFCCP compliance questions and/or concerns or wish to offer suggestions about future topics, please contact your membership representative at 866-268-6206 (for DirectEmployers Association Members), or email Candee at email@example.com with your ideas.
John C. Fox, Esq. is President and Partner at Fox, Wang & Morgan P.C. where he represents companies and tries cases in state and federal courts throughout the United States. Mr. Fox has extensive trial experience, having spent more than 300 days in trial. Mr. Fox was also lead trial counsel in the first of the six wage-hour class actions known to have been tried in California and was lead trial counsel in what are believed to have been the two largest disability law suits in the United States. He is an across-the-board employment lawyer representing management nationwide. Full Bio »