IS YOUR APPLICATION TRACKING SYSTEM HELPING WITH EEOC AND OFCCP COMPLIANCE?

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1 IS YOUR APPLICATION TRACKING SYSTEM HELPING WITH EEOC AND OFCCP COMPLIANCE? SMILG Detroit, MI MARCH 20, 2014

2 LEGAL DISCLAIMER The materials presented today in both written and oral forms are for information only and were prepared for this meeting. Attendees should consult with their own legal counsel before taking any actions and should not consider these materials or discussions to be legal or otherwise advice. Professional advice should be obtained before attempting to address any legal situation or problem.

3 AGENDA OFCCP and EEOC focus Why applicant tracking focus Translating compliance requirements into ATS Common pitfalls to avoid Top 5 to review Analyzing ATS data

4 THE PERFECT STORM IS BREWING EEOC and OFCCP are both becoming more focused on failure to hire The U.S. Equal Employment Opportunity Commission (EEOC) released their strategic plan for fiscal years , which establishes priorities and combines the components of EEOC s private, public, and federal sector enforcement. The six priorities included: Eliminating barriers in recruitment and hiring

5 THE PERFECT STORM IS BREWING Recruitment and hiring are high risk areas for employers The OFCCP has become increasingly more aggressive during audits Failure to hire accounts for vast majority of conciliation agreements containing fines Applicant data is used in your defense during: EEOC investigation Lawsuit OFCCP audit

6 REGULATORY REQUIREMENTS ADAAA Executive Order UGESP Title VII

7 NON-COMPLIANCE COSTS What is at stake? Systemic discrimination findings Back pay awards / settlements in the hundreds of thousand or even millions of dollars Forced offers Bad publicity Increased agency scrutiny

8 WHY FOCUS ON APPLICANT TRACKING?

9 WHY APPLICANT TRACKING FOCUS? The Uniform Guidelines on Employee Selection Procedures (UGESP) are used by the courts to determine if unlawful hiring practices were the basis of discrimination claims Applicant tracking is recommended by these guidelines for all employers obligated under Title VII and can be done pre-hire when part of an employer s decision to follow the guidelines

10 WHY APPLICANT TRACKING FOCUS? Employers may need applicant data to measure the validity of a selection procedures Tests Background checks Etc. Can help prevent / defend in lawsuits Collecting selection information Providing data for defense Documentation of job qualifications All with proper use

11 WHY APPLICANT TRACKING FOCUS? If your company has to be compliant with EEOC and/or OFCCP; you are required to keep applicant flow data and additional records This is made simpler with an applicant tracking systems to track the required data and generate reports Next week s regulations (Section 503 & VEVRAA) increase recordkeeping and other data collection requirements for federal contractors

12 ATS: FRIEND OR FOE During an EEOC investigation or OFCCP compliance review; your ATS can be an ally or adversary to your case Let s discuss how to make your ATS work to aid in your compliance

13 TRANSLATING AA/EEOC REGULATIONS INTO RECRUITMENT REQUIREMENTS

14 DEFINITION OF AN APPLICANT The EEOC and OFCCP use different definitions of an applicant The OFCCP definition allows you to weed out based on basic qualifications ATS should be able to report on all individuals who apply in order to comply with both agencies

15 INTERNET APPLICANT - EEOC Employer Acts to Fill a Particular Position Job Seeker Follows Standard Application Process Job Seeker Has Expressed Interest in a Specific Position

16 INTERNET APPLICANT RULE - OFCCP The four prongs to the Internet Applicant Ruling: Must meet all 4 to be an applicant Considered Meets Basic Qualifications Does Not Withdraw Expresses Interest

17 RECORD KEEPING & ATS Track the following: Expressions of interest (applications, resumes, etc.) Each stage of the recruitment process for applicants Reason for non-selections at each stage (disposition codes) Selection decisions at every stage All tests and the results (hot area) Background checks & results Accommodation requests/results Job posting information Job descriptions & qualifications Interview notes/forms

18 RECORD KEEPING & ATS EEOC regulations require that private employers keep all personnel and employment records for one year If an employee is involuntarily terminated, personnel records must be retained for one year from the date of termination. If a charge or civil action is filed under Title VII, ADA, GINA, or by the Commission Keep all related records until final disposition of charge or action

19 RECORD KEEPING & ATS The OFCCP has different recordkeeping obligations depending on the data element There are many data points under the new OFCCP regulations that require 3 years record retention, instead of 2 years Configure ATS and recordkeeping procedures to keep data for the appropriate period of time

20 RECRUITER TRAINING Train recruiters on the process changes as well as the technology changes Make sure compliance is part of the training Do they understand why these requirements are necessary? Recruitment Compliance Recruitment Efficiency Technology

21 COMMON PITFALLS TO AVOID

22 SKIMPING ON IMPLEMENTATION Accepting ATS vendor defaults Disposition codes Stages Statuses Many times companies don t even know what half the values would ever be used for Saving money now, can cost later.

23 NOT REEVALUATING PROCESS Not mapping recruitment process prior to implementing new technology Taking an existing process designed to work without an ATS and recreate it inside the ATS Missing large gaps of the recruitment process because it was too difficult to capture manually or with the previous system Apply Review Interview 1 Interview 2 Offer References Hire

24 RANKING & SCORING Proceed with Caution Using screening tools to rank and/or score Basic qualifications vs. preferred Hiring managers preferences When is it a test? If they can pass or fail; it is a test in the eyes of the UGESP Applies to both EEOC and OFCCP

25 ACCESSIBILITY & EQUAL OPPORTUNITY Not testing site and application for universal design No accommodation process for applicants Accommodation statement for applicant Tracking requests and results EEO rights not shared with applicants via online application

26 INADEQUATE TRAINING Not training recruitment team on changes in process- just the technology Not clearly outlining what must be tracked Not considering the requirements and how the technology addresses them No Data = No Defense

27 EMPLOYEE REFERRAL BLACK HOLE No referral process: Referrals considered before applying Improper tracking on referrals Pre-selection = Word of mouth recruitment All lead to a diminished defense

28 RESUME SEARCHES Ranking on preferred Not tracking: internal & external No Data Management Technique (DMT)

29 THE HIRING MANAGER ( HM ) & THE ATS Unrestricted HM access to ATS can cause issues Creating applicants by reviewing resumes No disposition reasons applied to decisions Pre-selection of applicants Giving applicants to the recruiters to process hire

30 THE TOP 5

31 #1: DISPOSITION CODES Too many Too few for defense Not used to limit applicant pool Inconsistently applied Recruiters have their favorite codes

32 #2: RECRUITMENT STAGES System processes the hire vs. applicants Missing steps in the process Manually added candidates may be input at later stages only Cannot tell the story of recruitment process

33 #3: APPLICANT HISTORY Does your ATS vendor provide as standard report Home grown systems may not be logging the history Moving candidates straight from applied to hired Missing interviews (1 st, 2 nd, 3 rd ) Only tracking an offer for hires

34 #4: REPORTING Can you report out on the data you may need in an investigation or audit Resumes and applications Job descriptions including minimum qualifications All posting info: what and where All who apply: advertisements, referrals, etc. Applicant flow history Race, gender, ethnicity of applicants Reports set up for AAP plan development

35 #5: JOB POSTINGS Many systems only track the external and internal postings (maybe a few of the big ones) Major and niche job boards not tracked Not tracking what was posted Post and pray outreach VEVRAA requirements

36 HOW TO ANALYZE THE DATA

37 Review previous year s data Stage tracking, search logs, job postings Look for trends WHERE TO START? Focus your analysis on the hires If you don t track it on your hires you won t on the others!

38 REVIEW SAMPLE REPORTS Do you reports give you the information you would need during an investigation or compliance review? Information needed for affirmative action plan generation Recruitment metrics

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40 CONTACT David Scheffler Vice President of Compliance Pinnacle HR Consulting Services (770) Jeff Baker Vice President Pinnacle HR Consulting Services (404)