How to Ensure a Compliant Recruiting Process

If you were to ask any Human Resources practitioner their least favorite thing in compliance, it wou...

Posted by Michiko Lynch, HR Consultant on November 16 2023
Michiko Lynch, HR Consultant

If you were to ask any Human Resources practitioner their least favorite thing in compliance, it would be safe to say the answer would be anything related to the recruiting and hiring process. Ask this same question to a federal contractor and nine times out of ten, the answer would be the same, but more specifically dealing with the applicant data itself.

The recruiting process gets a bad rap in the HR community for various reasons; the most common reason being ‘how can we as an organization ensure our recruiting process is a compliant one?’. Whether you are trying to stay in compliance with state legislation or federal regulations, the amount of information surrounding compliance in recruiting can make your head spin. Here at Berkshire, we as consultants deal with the ins and outs of not only analyzing recruiting data, but also consulting clients on best practices in ways to make their current processes more compliant based on the regulations set forth by the Office of Federal Contractor Compliance (OFCCP). Let’s further discuss ways you as a federal contractor can ensure your recruiting process is a compliant one in the eyes of the OFCCP.

Why Does it all Matter?

One of the first questions always received when discussing the importance of a compliant recruiting process is why – why do we have to do this, and why is it important. Being a federal contractor means that you could be audited at any time by the OFCCP. During what is called a Compliance Review, the OFCCP will review and analyze your applicant and hire data to see if any discrimination in hiring occurred. The OFCCP is looking for instances where there was a high selection rate of one race or gender than the other, at a statistically significant amount. If these instances are found, the contractor will have to explain to the OFCCP why this occurred, and more specifically why one candidate was selected for hire over another. If the organization does not have a compliant process for recruiting, answering these questions by the OFCCP can create a huge challenge, and can lead to the contractor greatly paying for these instances (we will go into this in more detail later in this blog).

The federal government is not the only entity that can request information regarding recruitment processes in an organization. State and Local governments, as well as the EEOC can potentially audit or question the recruitment process of an organization. Again, if there is no process set up, these questions can be a challenge to answer.

Where to begin?

When thinking about how to create a compliant recruitment process, it can be difficult to figure out where to start. Start at the beginning – how do we even attract candidates to our organization? Most likely your job postings and advertisements will be the first things a potential candidate will see when looking for an open position to apply for.

As a federal contractor, there are requirements based on the different regulations surrounding job postings. Under the Vietnam Era Veterans’ Readjustment Act (VEVRAA), contractors are required to post any open position with the appropriate Employment Service Delivery System (ESDS) where the job opening occurs except in the following circumstances: executive or senior management level positions, internal only positions, or a position that last three or less days. Another requirement for job postings is to include the basic qualifications of the position being advertised. The basic qualifications are the qualifications that are advertised to the potential candidate as being required in order to be considered for the position. These qualifications need to be established prior to the start of the selection process and cannot be changed once the selection process is underway. It is also best practice that contractors retain a record of the basic qualifications that were used to develop the pool of internet applicants for the posted position.

Most organizations are using some type of online system as part of their recruitment process, to track the candidates that apply for their open positions. When using an online system as part of your recruitment process, it is necessary for all federal contractors to provide necessary reasonable accommodations to ensure that an otherwise qualified individual with a disability, who may not be able to use the online or electronic system, is provided with an equal opportunity to apply for and considered for a position, unless the accommodation would pose an undue hardship. This requirement is also extended to the interviewing and hiring process of the recruitment process as well. The instructions on how to request an accommodation should be in an easily accessible location on the applicant system or webpage. The contact method for reasonable accommodation may be by email or telephone; whatever the method, it is important that the method is regularly checked by a representative of the organization.

When advertising your open positions, federal contractors need to ensure the appropriate taglines are being used. Each regulation has a specific requirement that must be followed regarding advertising taglines. For Section 503 and VEVRAA, the tagline on an advertisement must specifically indicate those that are protected by the regulations (it is not sufficient just to indicate that you are an equal opportunity employer). You may use abbreviations for the protected traits, but these abbreviations must be commonly understood by the jobseekers (for example just using a “D” for Individuals with Disabilities and a “V” for protected veterans is not enough). For EO11246, a contractor can satisfy the tagline by using the words “equal opportunity employer” (specific reference to a protected group is not required, however, if any protected group is listed, than all protected groups by EO11246 should be listed).

There are times when the organization may be trying to fill a very unique and highly-skilled position. Postings and advertisements may not be bringing in those candidates that possess the basic qualifications needed for the position, and sometimes the organization may need to source for candidates. When sourcing for candidates, it is okay to build a passive pipeline by positing links to the requisitions for the specific requisitions on a wide range of online sites. It is best practice to require the candidates in this pipeline to apply to a position through the online system. Be sure to create protocols for inviting candidates to apply, and only consider those who have actively expressed interest in a requisition. If using a database to search for candidates, be aware of some recordkeeping requirements. When using an internal database, be sure to record and date each resume that was added to the database. Ensure you are able to record the specific position that was searched, the search criteria, and the date the search for candidates occurred. When using an external database to search for candidates, be sure to document the specific positions for the search, what type of criteria was used for the search, the date of the search, and the resumes of the candidates who met the basic qualifications.

We’re getting candidates, now what?

Once jobs are posted, and candidates start applying to positions, managing the applicant pool becomes an important task (as a reminder, in an audit situation, the applicant and hiring processes will be evaluated by the OFCCP). Contractors will want to ensure they are tracking and managing their applicants in compliance with all federal regulations.

One of the first items a contractor will want to do is to define who an applicant is, based on OFCCP’s Internet Applicant Rule. An applicant is defined by the OFCCP as an individual who submits an electronic expression of interest through internet or related electronic data technology, is considered by the contractor for a particular position, possesses the basic qualifications for the particular position, and does not withdraw at any point prior to an offer being made.

One of the most helpful things for a contractor to begin doing as applicants start applying to positions is to create a way to manage the data coming in. Data management techniques can be most helpful in the high-volume positions of an organization (mostly the entry level positions). When used strategically, these techniques can limit the applicant pool size drastically. These techniques do not depend on the assessment of a candidate qualifications; the strategy here is to consider candidates in smaller batches by applying neutral criteria. The techniques may vary by requisitions, but you must specify which technique you will use prior to considering candidates and stay consistent within a requisition. 

Let’s Talk

A solid interview process is one of the best ways to help in finding the best candidate for your position, as this part of your recruitment process can leave a lot of room for risks. You will want to set up your interview process ahead of time, to ensure each applicant who makes it to this stage in your recruitment process has the same experience, thus allowing all candidates to be evaluated against the same set of criteria. When conducting interviews, notes are optional, but can help an interviewer remember a candidate. The interview notes are considered an official document and can be used as evidence. If an interviewer decides to take notes, retain them, know where they are, and develop a standard retention policy and procedures. Most importantly no photos of candidates should ever be taken.

To do this, the contractor will want to consider what types of questions you can and should focus on during the interview. These questions should be in line with the candidates’ willingness to do the job, the basic qualifications, and other objective preferences of the position, behavioral based questions, as well as the soft skills the applicant possesses. The contractor will want to avoid asking yes or no questions, as this leads to the interviewer doing most of the talking, where the candidate should be doing most of the talking. Questions that pose hypothetical situations should be avoided (unless assessing a candidate’s critical thinking skills), as they can lead a candidate to telling you what they think you want to hear versus how they would actually handle a situation. Lastly, the contractor should avoid questions that can put them into hot water. For example, questions that could gather information on any protected classification or topic.

Training of any individual that would be conducting interviews is a crucial part of a compliant recruitment process. All interviewers at a minimum should understand the company’s philosophy, policies, and procedures, as well as know what to ask and what not to ask.

There’s a Test?!

Some contractors have recruitment processes where candidates may take a test relevant to the position they are applying to. Examples of tests could be a computer skills test, typing test, or physical agility tests. Generally, tests are okay to administer, so long as there is no adverse impact against one group or another. In other words, all tests have to be validated. Test validation assesses that the test accurately assesses the ability to do the job and is the only method that assesses the ability to do the job. Validation is related to a specific job, for a specific company and is usually conducted by test validation experts. It is important to have all tests given to candidates validated as this may be one of the first questions asked by the OFCCP during a compliance review, when they see there is a test involved in a contractor’s recruitment process.

Best Practices for Dispositioning Applicants

A challenging aspect of a compliant recruitment process can be how to disposition the applicants that have applied for a position. It is important to ensure correct dispositioning is applied to each applicant and every applicant record has a final disposition, as this is the information that is used when analyzing applicant data in an AAP. Contractors will want to have some type of disposition for an applicant at each decision point in the applicant process. Once a requisition is ready to be closed, be sure to go back and look at each applicant to ensure the correct dispositioning as occurred (for example, an applicant does not have a disposition code which might suggest they are still in progress).

When dispositioning applicants, it is important to focus on why the applicant was not selected for the position, rather than why someone else was selected. Contractors will want to focus on if the candidate was considered or not, did the candidate withdraw at any point, can the company presume the candidate was disinterested in the position, and did the candidate not meet basic qualifications. The way a contractor answers these questions for an applicant will help in determining the best disposition code to describe what happened to the candidate during the applicant process, and why they were or were not selected for the position.

Artificial Intelligence and the Hiring Process

As society leans more heavily on technology to aid in creating a more streamlined workforce, it is important to understand how Artificial Intelligence (AI) affects the recruitment process of your organization. Legislation has been passed in certain states and local governments surrounding the validity of using AI in the hiring process, as lawmakers and legislatures are concerned that use of AI could perpetuate bias in the hiring process. The OFCCP is also looking into how a contractor uses AI in their hiring process. To ensure the AI that is being used in your recruitment processes is compliant, you will want to audit the algorithms that are used in your AI tool to mitigate bias when rating a candidate. Be sure to stay abreast of all local and state laws and legislation surrounding the use of AI in the hiring process, to remain in compliance with these governing officials.

Let’s Wrap Things Up!

As can be seen from the topics above, there are several steps that go into ensuring an organization’s recruitment process is a compliant one. The more time that is spent creating a compliant recruiting process, the less risk an organization may have. As society and technology changes, organizations, especially federal contractors, will want to incorporate more periodic reviews of their recruitment processes to ensure all boxes related to regulatory requirements are being checked. As with anything compliance related, seek legal advice as needed to ensure the processes created for your organization are compliant with all state and federal regulations.

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