poll how many employees are there in your company?

Beware of Rip Currents:Beware of Rip Currents:Managing the Ebb & Flow Managing the Ebb & Flow

of Applicantsof Applicants

Presented by:Presented by:

Cara CrottyCara CrottySylvia SmithSylvia Smith

Constangy, Brooks & Smith, LLPConstangy, Brooks & Smith, LLP

PollPollHow many employees are How many employees are there in your company?there in your company?

1.1. < 500< 500

2.2. 501 - 2,000501 - 2,000

3.3. 2,001 - 5,0002,001 - 5,000

4.4. 5,001 – 10,0005,001 – 10,000

5.5. > 10,000> 10,000

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13%13%

17%17%

17%17%

40%40%

PollPollHow many AAPs does your How many AAPs does your company develop annually?company develop annually?

1.1. Less than 5Less than 5

2.2. 5-205-20

3.3. 25-4025-40

4.4. Who knows? I’ve lost count! Who knows? I’ve lost count!

10%10%

23%23%

27%27%

40%40%

Imagine this …Imagine this …

$3 Million for alleged discrimination against $3 Million for alleged discrimination against 21,635 applicants21,635 applicants

$540,000 for alleged discrimination against $540,000 for alleged discrimination against 39 applicants39 applicants


$1.2 million for alleged discrimination against $1.2 million for alleged discrimination against 750 applicants750 applicants


Rampant Discrimination?Rampant Discrimination?

OROR No reasons to explain rejectionsNo reasons to explain rejections Inconsistent application of selection Inconsistent application of selection

proceduresprocedures Lack of recordsLack of records

Poor recordkeeping is single biggest reason for Poor recordkeeping is single biggest reason for findings of discrimination.findings of discrimination.

Avoiding DisparitiesAvoiding Disparities

Have to know why people were not hired Have to know why people were not hired – DISPOSITION CODES!DISPOSITION CODES!

Have to train hiring managers and/or Have to train hiring managers and/or recruiters to apply same standardsrecruiters to apply same standards– Degree requirementsDegree requirements– Poor work historyPoor work history– Prior experiencePrior experience– ConvictionsConvictions

Must comply with recordkeeping requirementsMust comply with recordkeeping requirements

PollPollHow does your company How does your company

comply with the comply with the recordkeeping recordkeeping

requirements for requirements for applicants?applicants?

1.1. State of the art electronic ATSState of the art electronic ATS

2.2. Excel or other manual databaseExcel or other manual database

3.3. Each establishment manages Each establishment manages their own…. Who knows?their own…. Who knows?

4.4. Paper applications onlyPaper applications only

5.5. We only worry about this when We only worry about this when auditedaudited

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THE INTERNET APPLICANT RULE IS YOUR THE INTERNET APPLICANT RULE IS YOUR FRIENDFRIEND

STEP ONE:Individual submits expression

of interest in employment through Internet or related technologies

STEP TWO:You consider the individual

for employment in a particular position

”Consider” = You assess substantive information provided in expression of interest with respect to qualifications involved with a particular position

You may establish protocol, including data management technologies, to refrain from considering some expressions of interest

Includes all expressions of interest, regardless of how submitted, if you consider expressions of interest made through Internet or related

technologies in the selection process for the particular position

STEP THREE:Expression of interest indicates

the individual has the basic qualifications for the position

Basic qualifications must be advertised or established and documented in advance

Basic qualifications must be: (1) non-comparative; (2) objective;

and (3) relevant to the job

STEP FOUR:Individual does not remove himself

from selection process prior to receiving an offer

Individual can withdraw by: (1) express statement; (2) repeated non-responsiveness; or (3) information provided in expression of interest

With v. Without With v. Without Disposition CodesDisposition Codes

100 Applicants100 Applicants– 50 M50 M– 50 F50 F

20 Hires20 Hires– 15 M15 M– 5 F5 F

IRA = -2.49 SDIRA = -2.49 SD

100 Applicants100 Applicants– Unable to ContactUnable to Contact

1 M1 M 10 F10 F

– Not interestedNot interested 2 M2 M 10 F10 F

– Don’t meet BQDon’t meet BQ 5 F5 F

20 Hires/Selections20 Hires/Selections– Declined offerDeclined offer

5 F5 F IRA = .68 SDIRA = .68 SD

Standard for Disparate Standard for Disparate Impact ClaimsImpact Claims

An unlawful employment practice based on An unlawful employment practice based on disparate impact is established only if:disparate impact is established only if:– plaintiff demonstrates that employer uses plaintiff demonstrates that employer uses

a a particular employment practiceparticular employment practice that that causes disparate impact causes disparate impact andand employer employer fails to demonstrate that the challenged fails to demonstrate that the challenged practice is job related and consistent with practice is job related and consistent with business necessity business necessity OROR

– plaintiff demonstrates alternative plaintiff demonstrates alternative employment practice that causes less employment practice that causes less impact and employer refuses to adopt itimpact and employer refuses to adopt it

But . . . But . . .

Plaintiff shall demonstrate that each Plaintiff shall demonstrate that each particular challenged employment practice particular challenged employment practice causes a disparate impactcauses a disparate impact– ExceptExcept that if plaintiff can demonstrate that if plaintiff can demonstrate

that the elements of the decision-making that the elements of the decision-making process process are not capable of separation for are not capable of separation for analysisanalysis, the decision-making process may , the decision-making process may be analyzed as one employment practice.be analyzed as one employment practice.

Two-Step ProcessTwo-Step Process

Plot the steps in your selection processPlot the steps in your selection process Tailor reasons for non-selection within each Tailor reasons for non-selection within each

stepstep

Plot Selection ProcessPlot Selection Process

Application ConformityApplication Conformity Application Review & AssessmentApplication Review & Assessment Phone Pre-ScreenPhone Pre-Screen Test Test Manager InterviewManager Interview Reference CheckReference Check OfferOffer

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PollPollHow many disposition codes How many disposition codes

does your company use?does your company use?1.1. I don’t know what a disposition code is.I don’t know what a disposition code is.

2.2. < 10< 10

3.3. 11 – 4011 – 40

4.4. > 40> 40

5.5. It does not matter. We only use 5 of them. It does not matter. We only use 5 of them.

Tailor Disposition Codes Tailor Disposition Codes within Each Step:within Each Step:

Step 1Step 1

Application ConformityApplication Conformity– Incomplete (Define!)Incomplete (Define!)– Not signedNot signed– Not received by cutoff dateNot received by cutoff date– Not submitted in accordance with Not submitted in accordance with

requirementsrequirements– ExpiredExpired– No job vacancyNo job vacancy

Step 2Step 2

Application Review & AssessmentApplication Review & Assessment– Does not meet BQ (education)Does not meet BQ (education)– Does not meet BQ (experience)Does not meet BQ (experience)– Ineligible for RehireIneligible for Rehire– Cannot work required shiftCannot work required shift– Excessive salary requirementsExcessive salary requirements– Cannot travelCannot travel

Step 3Step 3

Phone Pre-ScreenPhone Pre-Screen– Lack of knowledge (explain)Lack of knowledge (explain)– Interpersonal skills (explain)Interpersonal skills (explain)– Lack of interest (explain)Lack of interest (explain)– Not willing to relocateNot willing to relocate– Not willing to travelNot willing to travel– Unsatisfactory interview (explain)Unsatisfactory interview (explain)– Does not meet BQs (explain)Does not meet BQs (explain)– Unable to contactUnable to contact

Step 4Step 4

Test Test – Failed (list test)Failed (list test)– Did not completeDid not complete– No showNo show

Step 5Step 5

Manager InterviewManager Interview– Lack of knowledge (explain)Lack of knowledge (explain)– Interpersonal skills (explain)Interpersonal skills (explain)– Lack of interest (explain)Lack of interest (explain)– Not willing to relocateNot willing to relocate– Not willing to travelNot willing to travel– Unsatisfactory interview (explain)Unsatisfactory interview (explain)– Does not meet BQs (explain)Does not meet BQs (explain)– Unable to contactUnable to contact– No showNo show

PollPollHow do you know results of How do you know results of

manager interviews?manager interviews?1.1. HR has to track down manager each HR has to track down manager each

time to get reason for non-selection.time to get reason for non-selection.

2.2. Manager takes detailed notes and Manager takes detailed notes and provides HR with job-related reason provides HR with job-related reason for non-selection.for non-selection.

3.3. For those not selected, HR just notes For those not selected, HR just notes that manager hired most qualified that manager hired most qualified candidate. candidate.

4.4. We don’t worry about results of the We don’t worry about results of the interviews as long as we know who interviews as long as we know who was hired.was hired.

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Step 6 Step 6

Reference CheckReference Check– GPA/EducationGPA/Education– Prior EmployersPrior Employers– ConvictionConviction– Inconsistencies (explain)Inconsistencies (explain)

Step 7 Step 7

Offer DeclinedOffer Declined– MoneyMoney– HoursHours– Travel Travel – OtherOther

Other Categories Other Categories

Withdraws (note pre v. post offer)Withdraws (note pre v. post offer) Not eligible to work in U.S.Not eligible to work in U.S. Later discovered info (fraudulent) Later discovered info (fraudulent) Not consideredNot considered

– Position not filledPosition not filled– Hiring freezeHiring freeze– Not “considered” per Internet App RuleNot “considered” per Internet App Rule

Hired more qualified candidateHired more qualified candidate Other (explain)Other (explain)

Analyze Each Component Analyze Each Component of Selection Processof Selection Process

PollPollDo you analyze the different Do you analyze the different

components of your components of your selection process?selection process?

1.1. Yes, alwaysYes, always2.2. No, neverNo, never3.3. Only when there is disparate Only when there is disparate

impact overallimpact overall4.4. Sometimes, i.e., to determine if Sometimes, i.e., to determine if

test has impacttest has impact5.5. I have no idea, but I’m going to I have no idea, but I’m going to

find out when I get home from find out when I get home from this conference!this conference!

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Unique Applicant IssuesUnique Applicant Issues

Temp to PermTemp to Perm

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1 2 3

PollPollHow do you track “temp to How do you track “temp to

perm” hires?perm” hires?1.1. We don’t and have We don’t and have

100% hiring rates.100% hiring rates.

2.2. All temps are All temps are considered considered applicants.applicants.

3.3. We rely on the We rely on the temp agency to do temp agency to do that.that.


Temp to PermTemp to Perm Recruitment & Temporary WorkersRecruitment & Temporary Workers

1 2 3

0% 0%0%

PollPollHow do you satisfy How do you satisfy

recruitment requirements recruitment requirements for temp employees?for temp employees?

1.1. We rely on temp agency.We rely on temp agency.

2.2. We rely on temp agency We rely on temp agency andand include provision in include provision in contract.contract.

3.3. They are not our They are not our employees so we don’t employees so we don’t worry about it.worry about it.


Temp to PermTemp to Perm Recruitment & Temporary WorkersRecruitment & Temporary Workers Hiring for Position Different than AppliedHiring for Position Different than Applied

0%0%0%

1 2 3

PollPollFor what positions can For what positions can

individuals apply?individuals apply?1.1. Only a specific job Only a specific job

openingopening

2.2. We don’t require We don’t require applicants to specify a applicants to specify a jobjob

3.3. It does not matter; we It does not matter; we consider them for consider them for whatever seems whatever seems appropriate for their appropriate for their skills.skills.


Temp to PermTemp to Perm Recruitment & Temporary WorkersRecruitment & Temporary Workers Hiring for Position Different than AppliedHiring for Position Different than Applied CEO’s NieceCEO’s Niece

1.1. Referrals by-pass our applicant Referrals by-pass our applicant process and are automatically process and are automatically considered.considered.

2.2. Referrals must apply like everyone Referrals must apply like everyone else and are treated the same as else and are treated the same as other applicants.other applicants.

3.3. Referrals must apply like everyone Referrals must apply like everyone else, but we give them priority in the else, but we give them priority in the process.process.

4.4. It depends on who referred them.It depends on who referred them.

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PollPollHow do you treat employee How do you treat employee

referrals?referrals?


Temp to PermTemp to Perm Recruitment & Temporary WorkersRecruitment & Temporary Workers Hiring for Position Different than AppliedHiring for Position Different than Applied CEO’s NieceCEO’s Niece Job FairsJob Fairs

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1 2 3

PollPollHow do you retain resumes How do you retain resumes

from job fairs?from job fairs?1.1. All resumes are retained All resumes are retained

and entered into internal and entered into internal database.database.

2.2. We don’t take resumes; We don’t take resumes; individuals are told to individuals are told to follow application follow application procedures.procedures.

3.3. We only keep the We only keep the resumes that appear resumes that appear qualified for our qualified for our positions. positions.


Temp to PermTemp to Perm Recruitment & Temporary WorkersRecruitment & Temporary Workers Hiring for Position Different than AppliedHiring for Position Different than Applied CEO’s NieceCEO’s Niece Job FairsJob Fairs Employees Recruited from Outside U.S.Employees Recruited from Outside U.S.

PollPollDo you track applicants Do you track applicants

recruited from outside the recruited from outside the U.S.?U.S.?

1.1. They aren’t US citizens, so we They aren’t US citizens, so we don’t bother.don’t bother.

2.2. We include employees in AAP, We include employees in AAP, but do not include applicants in but do not include applicants in analysis.analysis.

3.3. We track and analyze like all We track and analyze like all other applicants.other applicants.

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Temp to PermTemp to Perm Recruitment & Temporary WorkersRecruitment & Temporary Workers Hiring for Position Different than AppliedHiring for Position Different than Applied CEO’s NieceCEO’s Niece Job FairsJob Fairs Employees Recruited from Outside U.S.Employees Recruited from Outside U.S. Applicants Hired Outside of AAP YearApplicants Hired Outside of AAP Year

PollPollHow do you manage How do you manage

applicants hired outside of applicants hired outside of AAP year?AAP year?

1.1. We only count people in year We only count people in year they applied.they applied.

2.2. Applicants follow the “hire,” so Applicants follow the “hire,” so applicants in 2012 may be applicants in 2012 may be counted in 2013 if hire occurred counted in 2013 if hire occurred then.then.

3.3. We don’t use requisition We don’t use requisition numbers, so we can’t always pair numbers, so we can’t always pair the applicants to a specific hire.the applicants to a specific hire.

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Temp to PermTemp to Perm Recruitment & Temporary WorkersRecruitment & Temporary Workers Hiring for Position Different than AppliedHiring for Position Different than Applied CEO’s NieceCEO’s Niece Job FairsJob Fairs Employees Recruited from Outside U.S.Employees Recruited from Outside U.S. Applicants Hired Outside of AAP YearApplicants Hired Outside of AAP Year Recruits that are never “considered”Recruits that are never “considered”

PollPollDo you give “priority” to Do you give “priority” to

referrals from recruitment referrals from recruitment sources?sources?

1.1. Yes, what’s the point of Yes, what’s the point of recruiting if we can make sure recruiting if we can make sure they are considered?they are considered?

2.2. No, all applicants are treated No, all applicants are treated the same.the same.

3.3. It depends on the recruitment It depends on the recruitment source.source.

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THANK YOU!THANK YOU!

Cara Crotty, EsquireCara Crotty, Esquire

[email protected]@constangy.com

803-667-4110803-667-4110

Sylvia Smith, AAP SpecialistSylvia Smith, AAP Specialist

[email protected]@constangy.com

404-230-6741404-230-6741

poll how many employees are there in your company?

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