“We’re Hiring – Apply Now” and Compliance Caution

As your company looks to quickly fill positions in the coming year, do remember that in the last dec...



Posted by Charu Avasthy, PHR, Senior HR Consultant on November 9 2021
Charu Avasthy, PHR, Senior HR Consultant

As your company looks to quickly fill positions in the coming year, do remember that in the last decade and a half, applicant impact ratio analysis is one item that has consistently been on OFCCP’s radar in compliance evaluations regardless of administration changes. In the same time period, issuance of internet applicant definition by the OFCCP helped provide clarity on “who is an applicant?”. Technological advances in applicant tracking systems also enabled contractors to make tremendous progress in managing and analyzing applicant data. While these efforts are a step in the right direction, a lot still needs to be done. We regularly run into some common issues while analyzing contractor data. I have shared these below to assist you in proactively identifying and fixing any pitfalls with your applicant data and selection processes.

  1. Disposition Reasons/Codes

    a.) Are favorite or go to disposition codes being used? If you have well defined disposition codes and find a handful of codes being used for a large population of applicant data over and over again this may indicate favorite or go to codes are being used. While this may not be wrong, you want to be sure exact reasons for rejection are being captured for every candidate.
    b.) Are you still using “Another qualified candidate selected”? We recommend discontinuing use of this code because it conveys why someone else was selected and doesn’t tell us why someone was rejected. Likewise, “Candidate not selected” isn’t helpful either. Consider use of “Lacks preferred qualification – education, experience, skills” or similar reasons.
    c.) Have you set up “Not considered due to data management techniques (DMT)”? Contractors are allowed to use this as a reason for not considering an applicant. If your company uses data management techniques, this is a very helpful code to have, if these techniques are used consistently for all applicants.
    d.) Can the stage in selection process be identified? – Iit is important to be able to identify at what stage in the selection process the candidate was eliminated. Some examples of commonly used stages are review, screening, interview, offer etc.
  2. Applicant data

    a.) When a job is posted externally, do you allow existing employees to apply? If yes, have you considered opening the job to internal applicants prior to posting it externally? If a job is filled from within, you alleviate a lot of posting, applicant tracking, and outreach obligations that come with an external job posting.
    b.) Do your requisitions have large applicant pools? This is invariably linked to high volume positions or requisitions left open for a long time, and/or practice of evergreen requisitions. While “large” pools or “long” time are relative terms, every company can define its own reasonable times frame to fill requisitions or use predefined data management technique to address this issue.
    c.) Are there one- to-one issues with your requisition/s? This shows up in a couple of different ways in your data. One candidate in the requisition is coded “Hired” and others are assigned a blanket disposition reason like not considered due to DMT or does not meet basic qualifications. Since these reasons don’t meet the internet applicant definition criteria, the remaining applicants are automatically excluded from the pool. Another scenario is when a requisition is opened to allow a pre-identified candidate to apply or for contractor conversion purpose. These need to be addressed with the hiring team.
    d.) Are there duplicate applications in the same requisition? A candidate must be allowed to apply only once for a requisition. This will eliminate the need for data clean up so that the same individual isn’t counted multiple times in a requisition.
    e.) Are there applicants in a requisition with an application date after the date of hire of the hired candidate? If yes, a process needs to be implemented wherein the requisitions are closed to job seekers after an interview or offer stage is reached in the selection process.
    f.) Do you have many contractor conversions during the plan year? If yes, please know that all obligations with an external job posting and applicant tracking apply in this scenario.
    g.) Do you notice instances where applicant/s were moved to another requisition by a recruiter? If yes, we do not recommend doing this. Instead invite the applicant/s to apply for the requisition.
  3. Training Issues discussed above highlight the importance of providing “Affirmative Action Compliance Training” for the recruiting/talent acquisition team. In many companies, turnover is high on these teams. Mandating an annual affirmative action compliance training will help refresh the internet applicant definition and compliance items (liability, disposition coding, outreach efforts etc.) for the seasoned recruiters and provide a training opportunity for the new members of the team. If you are a small company, provide this training or discuss applicant management compliance with those involved in the selection process e.g., HR, recruiter/s, and hiring managers.

This is by no means an exhaustive list and there will always be scenarios you may run into in future. Please reach out to your Berkshire consultant for advice and happy hiring!

Charu Avasthy, PHR, Senior HR Consultant
Charu Avasthy, PHR, Senior HR Consultant
Charu Avasthy is a leading Senior Human Resource Consultant for Berkshire. With over ten years in the compliance industry, Charu is a subject matter expert in compliance regulations and she provides customized solutions to a national base of clients across a broad span of industries.

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