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As the dust finally settles from OFCCP’s new scheduling letter, the true impact of the new audit reporting requirements is becoming clearer. Despite the Agency’s lofty equal pay initiatives and new regulations, the item giving audit defense practitioners the most headaches right now is the request for inclusion of sub-minority race data for applicants and hires.1

Adverse impact analyses of employers’ hiring processes have always been and continue to be the Agency’s “bread and butter.” Applicant-to-hire adverse impact is by far the most successful enforcement technique for OFCCP in identifying systemic discrimination and bringing back large monetary settlements.

Now, since detailed sub-minority data is submitted in every audit, Compliance Officers are identifying more statistical indicators, and this is leading to more requests to examine detailed applicant data. Therefore, it is more important than ever to ensure your requisition practices are not just compliant, but also present the organization’s applicant data in the best possible light.

Defending Applicant Data

If OFCCP finds adverse impact in any of the numerous sub-minority analyses, the employer’s only way to avoid a discrimination finding (and resulting back pay and reporting obligations) is to defend the underlying hiring decisions. Generally, this requires demonstrating that each hire was the best qualified from among those considered  for the opening.

Who is considered for each position is precisely where requisition best practices come into play. While requisitions generally are designed to show who was compared against whom, several common requisition practices muddy the water and make it more difficult for employers to defend their decisions in OFCCP audits. In particular, (1) multiple hires for the same position,
(2) “crossover” – hiring an applicant who applied for one position into another, and (3) electronic searches can muddy the waters as to who was really considered for the position. Below are some best practices to consider in these situations.

Multiple Hires for the Same Position

Recruiters and hiring managers often want to open requisitions for multiple hires. They may find it more efficient to have a single pool of candidates to source the position. How to best manage these situations, however, depends on the specific situation . . .

If your organization truly has a need for four hires with the same qualifications in the same location to perform the same job at the same time, a requisition with four hires is fine and truly represents who was considered for the job.

But it is better to open separate requisitions if the openings differ in:

  • Job Title (even by level if the different levels have different basic qualifications)
  • Location
  • Timing

If any of these three characteristics differ, then a single requisition would not accurately reflect who was truly considered for each job. Consider this example: Company XYZ will have four openings for Laborers. It wants to hire one Laborer now, one in 6 weeks, and is budgeted for one in Q3 and one in Q4. As a single requisition, it will be difficult to tell who was considered for each of the openings. Will candidates from the second opening be considered for the third? The third for the fourth? Since this is not as clear as a single requisition, OFCCP may instead argue that each candidate should count four times in the applicant data. Then, when the company goes to run its adverse impact analyses, big numbers are bad numbers – it is more likely the company will have statistically significant (i.e., costly) adverse impact as a result of the higher applicant numbers.

Similarly, keeping a requisition open as an ever-present, sourcing requisition (often called “evergreen” requisitions because they stay open for long periods of time) decreases the employer’s ability to identify which candidates were considered against whom. The rolling nature of evergreen requisitions makes it virtually impossible to identify which applicants were actually considered for which openings. And if you can’t do that, you may be required to explain why each hire was better than each and every candidate in the entire requisition, as opposed to just those who were actually considered for the specific opening.

Be that as it may, where operational needs dictate the use of evergreen requisitions, there are best practices to mitigate the risk of a systemic discrimination finding:

  • Impose Time Limits – consider closing evergreen requisitions after 1, 3 or 6 months (the shorter the better, but we must balance this risk with recruiter efficiency) and opening new ones. This will help keep group sizes down. It may also help recruiters avoid wasting time on stale applications.
  • Use Screening Questions – if your applicant system allows for it, require candidates of evergreen requisitions to verify that they are willing to do the job and meet the basic qualifications.
  • Keep Diligent Records – document the reasons why applicants were successful.

“Crossover” – When a Candidate is “Perfect For” Another Position

This happens all the time – a recruiter is talking to a candidate and says, “You’re not the best fit for this position, but you would be perfect for a different opening we have!” If you move the candidate from one requisition to the other, you have just established a basis for OFCCP to treat all applicants to the first positon as applicants for the second position. Again, this can potentially multiply the number of applicants . . . and big numbers are bad numbers for employers.

Another problem with this common practice is that it actually goes against the requisition process. One of the primary legal reasons for having requisitions is to argue this group of candidates should be considered against one another. Crossover decreases the employer’s ability to argue that OFCCP should only look at the groups on a requisition basis. OFCCP Compliance Officers are trained to look for deviations in established requisition procedures (they call this “cherry picking”), and to investigate any such departures from process. To avoid this, the safer approach is to invite  the identified candidate to apply to the second position.

Electronic Searches of Applicant Databases

Social media has revolutionized recruiting for many companies. At the push of a button, recruiters can now search vast databases of candidates for key qualifications or traits. So how does OFCCP view these databases for purposes of adverse impact analyses? Well, OFCCP’s FAQ says:

Can a company use a BOT to search an external database to fill a position? [A BOT (short for “robot”) is a program that operates as an agent for a user or another program or simulates a human activity. On the Internet, the most ubiquitous bots are the programs, also called spiders or crawlers, that access Web sites and gather their content for search engine indexes].

Yes. BOT searches of external resume databases are treated the same as other methods for searching external resume databases. The BOT may be used to search for basic qualifications for the position without retaining a copy of all resumes reviewed. If the BOT searches beyond the basic qualifications, the company could be found in violation of the Executive Order if it failed to maintain the resumes of each individual that met the basic qualifications. Other records required to be maintained regarding searches of external resume databases also must be maintained for BOT searches of such databases.2

And when conducting searches, it is critically important recruiters first search for basic qualifications of the position. Then, once they have identified all candidates who meet the basic qualifications (who are now your “applicants”), they can search for preferred qualifications.

This is because OFCCP takes the position that the search (aka “BOT” in OFCCP-speak) is acting as your agent in considering the candidates – thereby converting everyone who meets the basic qualifications to an “applicant” for purposes of adverse impact analyses. If the recruiter goes straight to a search of preferred qualifications, we will not be able to identify (and exclude) those who do not meet the basic qualifications. By first searching for basic qualifications, the employer can minimize this risk.

Or, as mentioned above, employers can also use screening questions to identify candidates who do not meet the basic qualifications. Under either approach, it is critical to identify and disqualify (and disposition as not meeting the basic qualifications and why) candidates who do not meet the basic qualifications and who should not count against the employer in the analyses.

Searches as described above can be scary in just a single requisition, let alone in a database. Imagine if all tens or hundreds of thousands of candidates in a database or “pipeline” are converted into potential “applicants” because of a poorly-executed search? And the numbers grow and grow as multiple searches are run. Given the risk involved in these searches and the big numbers are bad numbers statistical phenomenon, here are some best practices for minimizing applicant numbers:

  • Use screening questions to disqualify candidates who are not willing to do the job and who do not meet the basic qualifications;
  • Search first for basic qualifications, then for preferred qualifications;
  • Do not search databases for common positions, given the inherent danger, use database searches for more difficult-to-fill, “needle in a haystack” positions;
  • Use Data Management Techniques in requisitions with large numbers of candidates and lower basic qualifications; and,
  • If identifying candidates through searching social media sites or other databases, invite the candidate(s) to apply to your position, do not do it for them. This ensures that they meet the “expression of interest” element of the Internet Applicant Rule as an applicant who should really count against the organization.

To learn more about applicant tracking best practices and other ways to minimize risks for your organization, contact Scott Pechaitis at 303-876-2201 or [email protected].

1. OFCCP’s new compliance evaluation itemized listing requires submission of the total number of African-American/Black, Asian/Pacific Islander, Hispanic, American Indian/Alaskan Native, and White applicants and hires. The new scheduling letter and itemized listing are available here:   ?

2. Available at (   ?



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