How to Design and Implement a Strategic Applicant Tracking System

Transcription

1 How to Design and Implement a Strategic Applicant Tracking System Lynn Clements, Esq. Director of Regulatory Affairs, Berkshire Associates Michelle Duncan, Esq. Principal, Jackson Lewis P.C Jennifer Seda,Esq. Principal, Jackson Lewis P.C.

2 Legal Disclaimer This presentation was prepared for participants educational use. Participants should consult with counsel before implementing any strategies or actions discussed in this presentation and should not consider this presentation, or related materials, to be legal advice.

3 Agenda Why the Internet Applicant Rule Matters Screening Candidates Smartly Strategic Disposition Codes Managing Common, but Risky, Recruitment Practices Searching for Candidates the Right Way

4 Who Is An Applicant? Why Does It Matter?

5 Why Does It Matter? Required by law to maintain applicant records Enforcement agencies use data to evaluate our hiring practices Only those who meet the IAR definition of applicant must be included in statistical analyses The IAR allows us to exclude candidates who: Were never considered Don t meet basic qualifications Took themselves out of the process

6 Why Does It Really Matter: Big Numbers Are Bad Numbers Analysis Rate for Women Rate for Men 80% Rule Standard Deviation Shortfall Women vs Men 1/ / % Women vs Men 10/ / % Women vs Men 100/ / %

7 OFCCP Requests All Expressions of Interest Enforcement technique du jour Trend cuts across OFCCP Regions Asking for all expressions of interest even without statistical indicators or placement goals Justification: OFCCP wants to evaluate the application of the IAR

8 What s the Big Deal? Itemized Listing only requires that employers submit summary applicant data Where there are statistical indicators, submitting detailed applicant flow data may be appropriate Expressions of interest goes well beyond data related to applicants Will not align with the applicant data submitted in an audit Will very likely have different statistical results

9 Signs This May Be an Issue OFCCP may ask: Was IAR applied? Does data include all expressions of interest? Was anyone removed from the applicant data based on the IAR? Provide a written description of the hiring process. Provide all expressions of interest. Determine WHY OFCCP is asking: Adverse impact Goals Single-sex JT/JG Low applicant to hire ratios Lack of diversity in workforce Lack of diversity in applicant pools

10 How Should You Respond? Ask OFCCP what concern/issue prompted the request Explore alternative data/information to address concern If you plan to provide the data, analyze prior to submission

11 Enforcement Implications OFCCP may reject IAR and consider as applicants all individuals who express an interest Recently, the NE and Mid-Atlantic Regions: Refused to engage in a discussion of the IAR during the audit and during conciliation OFCCP relied on data that includes non-applicants in its Notice of Violations

12 How to Stay Ahead of this Trend Refinements to Applicant Flow Be conservative anticipate greater review Consider applying the IAR even where no statistical indicators exist Refine Utilization Analysis Be strategic with geographic areas and census codes Give OFCCP one less reason to justify these requests

13 Screening Candidates Smartly

14 How to Set Up Strategic Screening Questions Consider the elements of the IAR Willing to work your job Removal from consideration Meets the basic qualifications Tailored to the job this may mean different questions for different jobs, job families, etc. Be consistent don t let recruiters change from opening to opening

15 Willingness Questions Are you willing to (what the job requires) Travel % Work in a cold environment Wear safety gear Relocate

16 Removal from Consideration Use screening questions to allow candidates to opt out of the process/not interested in job: What are your minimum salary requirements? FT/PT Days/shifts available

17 Basic Qualification Questions Ask basic (more basic than minimum) qualification questions Best practice: Do not ask preferred qualifications Now considered substantive qualifications Must retain Should change from job to job Tip: If you want the same questions across all jobs, do not ask BQs

18 Scoring Scoring can be seen as a test under UGESP Taleo ACE and other ATS use scoring Safer to set up as pass/fail rather than numerical score If scored, score should be meaningful, not arbitrarily set

19 Strategic Disposition Codes

20 Importance of Strategic Use of Disposition Codes With a reinvigorated OFCCP, now more than ever, employers must focus on identifying and explaining indicators of adverse impact Employers can effectively do that through the use of strategic disposition codes Can use disposition codes to determine: Who is an applicant under the Rule? Who is not and can be taken out?

21 Purpose of Disposition Codes Strategic disposition codes should help employers clarify: When? When did the candidate fall out? Why? Why did they fall out? Who? Who made the decision? Especially helpful for employers undergoing an audit several years later Who made the decision and date is typically kept in the notes sections of ATS systems

22 Strategic Disposition Codes Examples of strategic disposition codes: Candidate declined offer Did not consider Does not meet BQ Rejected Could not contact to schedule 1 st interview Rejected Could not contact to schedule phone interview Offer rescinded Failed background check

23 Using Strategic Disposition Codes in Audits Analysis Rate for Females Rate for Males Standard Deviation Shortfall Unrefined All Candidates 20/ / Minus Never Considered 20/ / And Minus Does Not Meet Basic Qualifications 20/ / And Minus Withdrew 20/ /

24 Managing Common, but Risky, Recruitment Practices

25 The No Hire Requisition What s the problem? Including applicant data for requisitions where there was no hire during the plan year increases the applicant pool (or denominator of adverse impact calculations) without a corresponding selection (the numerator) How to handle strategically? Code all candidates as No Hire Requisition Cancelled Remove all candidates with this code from annual personnel activity analyses since point of applicant data submission is to evaluate selection decisions

26 Evergreen and Never Closed Requisitions What s the problem? Leaving requisitions open for long periods of time creates bigger candidate pools Unclear which candidates were considered for each hire; Allows agencies to argue that same candidate should be counted as an applicant multiple times How to handle strategically? Determine recruitment needs first and how to explain specific selections second Place limits on number of days/weeks requisition may be opened Place requisition on hold when there is an adequate pipeline and then reopen Move candidates through process in batches Use available information, such as date applied, to create requisition based pools Monitor for patterns, such as consistent favored or non-favored group across plans

27 Cross-Over Requisitions What s the problem? Moving even a single candidate between requisitions allows agencies to argue that other candidates were also considered for more than one position this equals large applicant pools How to handle strategically? Best practice is to invite candidate to apply for the other requisition; if he/she doesn t apply, move on Audit applicant data to find patterns in recruitment behavior and then build applicant tracking processes around those practices Retain data that allows you to show that other candidates would not have been qualified for any higher level cross-over requisitions

28 What s the problem? Access to Candidate Data Allows recruiter to develop diverse pool (affirmative action) BUT increases danger that protected status is used in impermissible way (discrimination) How to handle strategically? Best practice is to hide specific candidate data but provide access to summary information:

29 What s the problem? Using Social Media Data Agencies have expressed concern about use of social media info EEOC scrutinizes facts closely, and assumes employer considered the information relevant to its employment decision How to handle strategically? Social media background checks should be done by third party or a designated employee who does not make hiring decisions Only use publicly available information Do not request usernames or passwords for social media accounts (some states already prohibit this)

30 The Too Much or Too Little Data Problem What s the problem? Different recordkeeping obligations depending on data and state Race and gender data = minimum 2 years Vets and disabled data = minimum 3 years Some ATS systems will store indefinitely check your contract Access to data if you change vendors Why does it matter? EEOC RFIs: Provide applicants for all positions from 1/1/10 present

31 The Too Much or Too Little Data Problem How to handle strategically? Maintain enough data to defend your decisions in audits Ensure place litigation hold when audit starts OFCCP can go back two years from date of scheduling letter Understand vendor policies Understand how long data will be kept Develop proactive plan when switching vendors Keep all data during relevant period when switching systems Maintain in an accessible format

32 The Hard to Hire Requisition What s the problem? Sourcing incorrectly may create significant recordkeeping issues Many companies are not creating adequate records for these hires, creating 1 applicant to 1 hire ratios How to handle strategically? Distinguish between passive recruitment and recruitment for specific positions Keep search records Invite those you speak with to apply when specific position is available and/or request for self-id data and add to ATS

33 Searching for Candidates

34 Know Why You Are Searching Distinguish between sourcing, recruitment, and selection for specific positions Sourcing is the finding and initial engagement of passive candidates for positions that are not yet open; few recordkeeping requirements if done correctly Recruitment activities can create recordkeeping obligations, such as when external or internal databases are searched for particular positions Particular selection decisions must be documented

35 What Records to Keep External Database Searches for Specific Position Date of search Search criteria used Position for which search was conducted Resumes of those who met basic qualifications and were considered Internal Database Searches for Specific Position Above data All resumes added to the database and date added

36 How to Search Build a passive candidate pipeline using integrated talent recruitment model Automate logging of all searches Develop protocols about manner in which potential candidates are made aware of openings Have passive candidates apply for particular positions through ATS and only consider those that do

37 Questions? Lynn Clements , ext Michelle Duncan Jennifer Seda