A Template for Proper Hiring Hygiene
The Lighthouse Model Hiring Process is a template to follow in designing or tweaking your hiring process. It ensures that you hire the best employees without illegal discrimination and have records to prove it.
There are five key ingredients in our Model Hiring Process:
- Job seekers apply to positions (position based),
- job seekers opt-in,
- qualification-based selection,
- meticulous record keeping, and
- periodic review.
Position Based
Position[i] based hiring is not just a good idea–it is essential. A position is an instance of a job. It is not the job itself, though a job is one of the attributes of a position. Some other attributes of a position include salary, work location, shift, and supervisor. We post a position opening by using a requisition. A requisition is an order to fill an open position. Now, we consider[ii] job seekers[iii] by requisition for a specific position. Not for this Job in general, but specifically for this position. We still need to know if the job seeker:
- has any interest in the position,
- has salary requirements within our range,
- will work the required shift, and at the required location, and
- meets the Basic Qualifications.[iv]
If you are a federal contractor, you will want to know if this job seeker should be considered an Internet applicant[v] and how Office of Federal Contract Compliance Programs (OFCCP) treat the job seeker? The job seeker will get considered for positions available during the audit period, but which positions? Without our guidance, OFCCP will assume the job seekers all applied to all positions and all jobs–a logistics nightmare.
For every job seeker, we need to know the positions for which we must consider them. For each of those positions, we then need to know whether the job seeker is an applicant.[vi] What we do not want to do is consider every job seeker for every position. What we want to do is consider job seekers for just the right positions and none of the wrong ones. In the next section, we are going to tell you how to do just that.
At the very minimum, we must identify all applicants to each position we fill. There can be no grey area. A job seeker was either an applicant to a position or was not.
Opt-in
The idea, policy and practice that job seekers themselves decide whether to become applicants to particular positions, is exceptionally powerful. It avoids wasting resources on individuals that have no interest in the position. It prevents having to defend our hiring decisions against individuals that were never considered and never should have been considered in the first place.
“Opt-in” means that job seekers are explicitly telling us which positions they would like to pursue. They “Opt-in.” We consider them for only those positions. Much like an internal posting process, if employees fail to put themselves into consideration they can hardly complain when we do not hire them. Conversely, we know that if an individual specifically indicates interest in a position, then they are someone we must consider.
The only difficulty with an opt-in system is that it requires the discipline to respect the decisions of the applicants. If a job seeker does not apply to the position, even if qualified and desirable, we simply cannot choose them. (Of course, we can always ask them to reconsider their decision not to apply for other positions.)
The vast number of OFCCP settlements recovering damages for victims[vii] of discrimination depend on the fact that the employer could not demonstrate that the hires were more qualified than the victims. Often, the reason is because the employers’ records failed to distinguish which individuals were considered for which positions.
For example: Let’s say during the year we were to hire 50 applicants and 10 of those hires were women. At the end of the year, we see that we have a pool of 300 total applicants, and 150 of those applicants were women. The OFCCP might say that from those numbers, statistically speaking, we had failed to hire enough women. We would then be forced to defend each of our 40 male hiring decisions against all 140 remaining qualified female victims—a daunting task to say the least. AND, logistically wrong. It assumes that all applicants applied to all positions. Further, it assumes late period applicants are potential victims in decisions that occurred before they applied. An OFCCP phenomena we refer to, tongue in cheek, as clairvoyant discrimination.
Position based, opt-in process not only solves the problem of who applied to what, but also prevents OFCCP from claiming we should have considered others for a position. If we use an opt-in system, then we have no obligation to consider job seekers who did not opt-in and they have no grounds to complain. They cannot be victims!
Qualification Based Selection
It goes without saying that we want to hire the best people and that means the best qualified for the position. So, for starters, we need to know the qualifications for our positions. Qualifications means requirements. Position qualifications (requirements) are not sliding scales. Job seekers either have them or they do not. Qualifications are the skill, experience, and/or aptitude that the new hire must possess on day one.
Qualifications arise from the job. A job has a set of functional duties and responsibilities that constitute the minimum qualifications[viii]. That was the way the United States Supreme Court saw it, before OFCCP muddied the waters with their now infamous definition of an Internet Applicant. The Model Hiring Process assumes that at least a portion of the job seekers applied electronically and therefore, Internet applicant rules apply.
In addition to minimum qualifications, OFCCP described a second set of qualifications as basic. Those qualifications significantly overlap minimum qualifications, but not entirely. There are minimum qualifications that are not basic qualifications and basic qualifications that are not minimum qualifications. Basic qualifications[ix] encompass the requirements of the position (a specific instance of the job). For example, basic qualifications may include willingness to work specific hours or shifts. One may be perfectly capable of performing the functional duties of the job but refuse to work nights, therefore meeting the minimum, but not the basic qualifications.
Further basic qualifications may include specific criteria not required of minimum qualifications, most significantly, tests may not be basic qualifications. A test that measures job skills effectively may be a minimum, but not basic qualification.
In practice, we should measure job seekers against both minimum and basic qualifications. The vagaries of OFCCP regulation dictate that the difference effects our record keeping and impact testing, so we must know the difference.
Job seekers must (among other things) meet the basic qualifications to be Internet applicants. Internet applicants that meet the minimum qualifications form the group from which we should hire. Of course, if we are afforded the luxury of multiple qualified applicants, we should pick the best of the best based on other criteria, such as additional relevant skills, strength of the interview, etc.
Meticulous Record Keeping
There are two reasons to pay particular attention to detailed accurate record keeping. First, and arguably most importantly, you cannot keep it all in your head. You must keep records for any process. You need to know who applied to what, when and how. You need to know who is qualified, who is not and for whom it remains to be determined. You need to know who you hired, who you did not hire and why.
Second, your records serve as validation to others (notably, OFCCP, or possibly the EEOC or even an enterprising plaintiff’s lawyer). OFCCP collects millions of dollars for ‘victims’ of discrimination from contractors like you. They often do it by using the contractors’ own records against them. If you keep haphazard records, expect the worst. OFCCP takes no prisoners. If you cannot actively prove you didn’t discriminate, they will assume you did, and without records to prove otherwise you have very little recourse. They are out to prove their worth to Congress by collecting money for victims of discrimination. You know that, so do not let it happen to you.
Accept that you must keep records and that if it’s worth doing, it’s worth doing right. With that behind us, let’s talk about how to do it right. First, forget doing it by hand. OFCCP views manual record systems as low hanging fruit. They know that manual record system means inaccurate, inconsistent, and incomplete information. It’s not even cheaper anymore, so there is simply no good reason to resist automation.
A good automated system resolves much of the challenge of what, how and how long to keep records, but let’s address it briefly. OFCCP’s official position is that you must keep every employment record made or kept for two years from the date of making (with some exceptions, including 3 years for records pertaining to veteran status and disability). Simply put, keep everything necessary and sufficient to document who you hired, who you did not, and why. We call this the Santa Claus principle—who was naughty, who was nice, and who got the candy.
List every job seekers’ expression of interest and collect demographics for Internet applicants by position. For each expression of interest, record the disposition of the individual inquiry and keep the receipts (application forms, resumes, tests, results of drug screens, background checks, credit checks, etc.). Your logs should include:
- name,
- date of application,
- source or referral,
- requisition or position number,
- job (can be gleaned for position), and
- disposition (what happened).
You must attempt to collect demographics (race, ethnicity, and gender) from all job seekers. You should do that as early in the process as possible. We do it before the application.
Records should be kept according to Affirmative Action Plan (AAP) year or calendar year if you are not required to do an AAP. Records should be destroyed systematically according to a document destruction policy. Annually, purge applications and related documentation for positions that were filled more than two years prior (some attorneys choose to keep records longer). Remember to keep the applications of those you hired.
Periodic Review
When OFCCP analyzes your hiring records, they are looking for evidence of systemic (pattern and practice) discrimination. They do not extract millions of dollars, from contractors like you each year, by sitting on their laurels. So don’t wait for OFCCP to surprise you. Test your hiring performance. See if your records contain evidence of discrimination. If they do, fix it.
The methods employed by OFCCP to test for adverse impact in hiring are not secret. They have been using the Impact Ratio Analysis (IRA) for decades. Here’s a great idea. Test hiring decisions before OFCCP gets a chance. Understand what they would see in an antagonistic situation. Use their test. It is not hard–even OFCCP Compliance Officers can do it.
Basically, you must compare the applicants to the hires by race, ethnicity, and gender to determine if you have hired significantly (statistically) less, of any group, than expected by chance. You do this for reasonable units of analysis— jobs titles. A good automated system will help you with this.
For each significant difference, you should review the hiring activity to reconcile the result (ensure that there is an explanation other than discrimination). Review the positions for which you hired in this job or group of jobs. If you cannot find reasonable justification, then interview the decision makers regarding those groups that suffered impact.
Remedies might include training and, in the most radical cases, discipline. In no event should you discuss these measures outside the small group charged with fixing a problem. Certainly, never discuss it with OFCCP! Often contractors will retain counsel to ensure protection of these confidential measures.
Adverse Impact testing, OFCCP discrimination testing (IRA) are covered in more depth in the third article in this series.
Conclusion
At heart, the MHP leverages position based and opt-in strategies coupled with qualification-based selection to form a strong framework facilitating the best hiring decisions. A solid logistical layer of well-maintained records will reduce your legal exposure. We highly recommend that you review your process and test your results at least annually.
Please watch a short video explaining our Model Hiring Process to learn more.
[i] Position: An identifiable instance of a job. For example, a position is a Teller job with a particular time, place, salary range, etc.
[ii] Consider: Any evaluation, by the employer, reducing the number of individuals included in the job seeker pool of those to be considered for the position, constitutes “considering” the individuals for a particular position, except certain neutral data management selection techniques. Any assessment of the job seekers qualifications against requirements of a particular position, including a determination of whether a job seeker meets the basic qualifications for the position, constitutes “considering” the job seeker for that particular position.
[iii] Job seeker: We use the term to denote anyone expressing interest in employment. This double talk is necessary to distinguish the real “Applicants” (term of art) from those that have simply expressed interest. Accordingly, a Job Seeker Log may contain individuals that do not meet the basic qualifications.
[iv] Basic Qualifications (BQs): One of four criteria to determine if an individual is an Internet applicant is whether he or she meets the basic qualifications. Basic qualifications must be advertised in advance, objective, non-comparative and “relevant to the performance of the particular position and enable the contractor to accomplish business-related goals.” BQ’s are “must haves” that a third party would be able to evaluate independent of other applicants for the same position.
[v] Internet Applicant: An Internet applicant is an individual that satisfies the OFCCP four prong definition of an Internet applicant. The individual must apply using Internet, electronic technologies (including fax), be considered for a particular position, meet the basic qualifications, and not withdraw.
[vi] Applicant: An applicant is an individual who has applied, meets the minimum qualifications and who the employer has considered or should have considered for employment (in a particular position)1. See McDonnell Douglas Corp. v Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 688 (1978). OFCCP rules do not change basic Title VII law as interpreted by the United States Supreme Court. McDonnell Douglas is still good law. OFCCP rule provided a definition of an Internet applicant which differs from this definition in some important ways, but the fact remains that under Title VII, McDonnell Douglas defines an applicant.
[vii] Victim is OFCCP parlance for applicants that were not hired and, in a class, (minority group, gender, etc.) for which the employer hired significantly less than expected. Here we are speaking of statistical significance at the level of .05, which the OFCCP expresses as 2 standard deviations.
[viii] Minimum Qualifications (MQs): Minimum qualifications are those that are necessary for the successful performance of a particular position. Minimum qualifications must be strongly related to (based on) the functional requirements of the position. MQs are “must haves” including the knowledge, ability, experience, education, and skill that a successful job seeker must possess on the first day of work.
[ix] Basic Qualifications (BQs): One of four criteria to determine if an individual is an Internet applicant is whether he or she meets the basic qualifications. Basic qualifications must be advertised in advance, objective, non-comparative and “relevant to the performance of the particular position and enable the contractor to accomplish business-related goals.” BQ’s are “must haves” that a third party would be able to evaluate independent of other applicants for the same position.