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While reviewing candidate qualifications for an open position, you come across someone who has great skills but is not the best match for the open position. Or you are conducting a passive search and come across a candidate that you would like to “hold” for another position when the opening becomes available. Either way you source the “other” candidate, you don’t want to lose them if the timing is not in sync with an opening. What should you do?

In situations like this, you have to consider the compliance requirements along with the practical way in which you need to operate your business, particularly when it comes to hard to fill jobs. In either instance, my recommendations for blending business needs with compliance requirements apply.

From reading the questions posted in the Ask the Experts area of the Local JobNetwork™ (LJN) as well as receiving similar questions from my clients, this seems to be a common occurrence. There are several options for proceeding with this candidate. While some companies have the capability and willingness to create a position to slot the candidate into, for practical reasons this option does not appear to be the norm.

However, as this is an option for some, here are steps to ensure compliance. These steps may be dependent on how far the candidate got in the selection process for the original position. If the candidate already made it through the interview process for the original job and you are ready to offer them this new position, then step five as identified below may not occur. Keep in mind that you do not need to keep the requisition open very long; however, to be compliant you want to go through the following steps.

  1. Create a new requisition for the position.
  2. List the opening with the State Employment Service Delivery System (ESDS) and diversity recruiting sources.
  3. Contact the candidate (Candidate X for excellent!) to determine interest in the new position.
  4. If interested, either manually add them to the new requisition or ask that they re-apply.
  5. Continue through the selection process as you would for any other newly opened requisition.

I’m sure that many of you are thinking, “Do we really need to go through the entire process if we know we want to hire this candidate?”  The quick answer is “yes”  if you want to have a compliant process. However, the process can be streamlined as shown in the following calendar illustration of the initial requisition [A1] and hire and the second requisition [A2] and hire.

February 2016

Monday Tuesday Wednesday Thursday Friday
Initial requisition [A1] opened, posted on company website, listed with State ESDS & diversity recruiting sources
Resumes reviewed
Resumes reviewed
Phone screens conducted
Phone screens conducted
In person interviews conducted
In person interviews conducted
Candidate X identified for new position
11 12
Offer made to Candidate Y for original opening
16 17
Offer accepted and requisition [A1] closed
Candidate X contacted regarding interest in new position
If Candidate X indicates interest, new requisition [A2] is opened and listed with the State ESDS
Offer made to Candidate X
24 25
Offer accepted and requisition [A2] is closed

In the above scenario, you will most likely have a 1:1 hiring ratio in the second requisition [A2]. If this type of hiring is a common occurrence within your organization, then it may be a red flag to the OFCCP during an audit. However, if situations like this only occur in rare or infrequent instances, a few 1:1 hires will not necessarily stand out to the government when submitting your applicant flow data.

Okay, so this may be a reach for using as an explanation for having a small or 1:1 hire rate; however, according to the following OFCCP FAQ, there are not a minimum number of expressions of interest that must be considered. Does this give you permission to always have 1:1 hires? Definitely not!

FAQ: Is there a minimum number of expressions of interest that must be considered when a data management technique is used to limit the number of expressions of interest?

No. OFCCP will allow the contractor to determine the number of expressions of interest that are considered for each specific position as long as the pool is appropriate in terms of those submitting expressions of interest for that position, that is, the data management techniques are facially neutral and do not produce disparate impact based on race, gender, or ethnicity in the expressions of interest considered. OFCCP will consider labor force statistics in evaluating whether the pool of expressions of interest to be considered produces disparate impact.

Next, let’s address what would happen in most organizations whereby you have identified an excellent Candidate (X) but have no place to put them. What can you do so that you don’t lose them?

I suggest creating an evergreen job requisition for the position that you would like to fill with Candidate X. An evergreen position is an open requisition for a job not tied to a specific opening. It is typically used to source candidates for hard to fill positions or job openings that may require immediate placement. To learn more about evergreen positions and compliance, read my January 2016 OFCCP Digest article.

I recommend the following steps to ensure compliance when opening the evergreen requisition.

  1. Identify the position that you would ultimately like to fill with Candidate X.
  2. Open up an evergreen job requisition for that position.
  3. Contact Candidate X to determine interest in a future opportunity working in this position.
  4. If interested, either manually add them to the new requisition or ask that they re-apply. The best practice is for the candidate to re-apply.
  5. List the opening with the State ESDS and diversity recruiting sources.
  6. Keep the requisition open until a job vacancy occurs and candidates are considered or up to three months.
  7. If no opening becomes available within three months, close out the requisition and re-open a new evergreen requisition. You may manually add Candidate X to the new requisition; however, when an opening does occur, contact him/her to again determine interest.

Many contractors have positions requiring specialized skills, certifications, government clearances, etc. that make finding quality candidates extremely challenging. For these reasons, it is important to attempt to keep a good candidate when they are sourced, whether or not it is for the position for which they have originally applied. In order to do this, we hope that our recommendations provided you with some thought of how you can do this in a compliant manner.

If you have any questions or would like to continue this discussion, do not hesitate to contact me at [email protected] or at 410-581-4970. To receive our compliance updates and newsletters, sign-up at

The foregoing has been prepared for the general information of clients and friends of Workplace Dynamics LLC and is not being represented as being all-inclusive or complete. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel.



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