Talemetry and united states legal compliance in recruiting and hiring


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Talemetry and united states legal compliance in recruiting and hiring

  1. 1. Whitepaper: Talemetry and United States Legal Compliance in Recruiting and Hiring Date: 19 November 2012Talent Technology Corporation
  2. 2. Table of Contents1 TALEMETRY AND UNITED STATES LEGAL COMPLIANCE IN RECRUITING AND HIRING 32 SOURCING AND OFCCP REQUIREMENTS 43 SOURCING AND EEOC AND OFCCP OBLIGATIONS 74 SUMMARY 8Talent Technology Corporation 2Whitepaper: Talemetry and United States Legal Compliance in Recruiting and Hiring
  3. 3. 1 Talemetry and United States Legal Compliance in Recruiting and Hiring The hiring process today is a minefield of laws, regulations and ever-changing legal challenges. Failing to comply can have a wide range of consequences; none of them desirable, and many very expensive. This is why employers need their recruiting and hiring vendors to help protect, rather than expose, them. Some geographic areas experience major shortages of candidates; others have a surplus. This has changed the recruiting and hiring process for most employers. The rise of social networks, demographic changes in the makeup of the workforce, and heightened oversight by government compliance agencies have further complicated the HR department’s life. Even more, the growing demand by business units to find the best talent… and hire fast… raises the bar and makes it important to take the best advantage of today’s technology solutions to help find, engage, and screen talent. Fortunately, along with the increase in complexity, new software solutions have been developed that not only help drive an employer’s hiring results, but also provide the means to comply with legal requirements. Many of these solutions even help reduce the risk of accidental non-compliance. This overview lays out some of the major requirements U.S. companies face in complying with today’s hiring laws and regulations, including rules and regulations put forth by the Office of Federal Compliance Programs (“OFCCP”) and the Equal Employment Opportunity Commission (“EEOC”). It also describes how Talent Technology Talemetry sourcing software solutions help companies deal with these rules. Of course Talent Technology is not a law firm and this overview should not be taken as legal advice. Readers and their companies should engage their own legal counsel and obtain advice specific to their particular circumstances. For those interested, Talent Technology can offer connections to some of the United State’s most experienced and respected employment law attorneys. In addition, laws and regulations change over time and readers should obtain advice on how the laws discussed here might have changed following the date of this overview.Talent Technology Corporation 3Whitepaper: Talemetry and United States Legal Compliance in Recruiting and Hiring
  4. 4. 2 Sourcing and OFCCP Requirements One of the highest value activities a recruiter can offer is to find, attract, and serve up a large number of qualified candidates for a posted position. Even better is finding top talent candidates who are not currently looking for a job and getting them to apply. Finding these “passive candidates” once led an employer’s recruiting unit to follow solutions such as posting ads, launching campaigns, and calling a third party recruiting agency with a large rolodex of potential candidates. Today, this is outdated, and increasingly expensive. Modern recruiting units search their companies’ databases of resumes, and reach out to the Internet to find candidates. They use the tools they have at hand, be it Google or Bing Internet search engines, as well as specialty tools such as LinkedIn Recruiter or proprietary job board database search tools. Whatever the modern, technology-based solution, there is one objective – finding a pool of the best talent so that every hiring decision can actually be a decision, rather than merely accepting one of a few candidates who apply. Building on recruiters’ need for targeted searches, volume, and speed, Talemetry Match offers a single interface that helps recruiters search a wide variety of databases, from the open web to proprietary databases where a company has purchased user subscriptions. Talemetry Match serves a key need - provide an easy way for an employer to consolidate its search for potential candidates across a wide range of data sources. The ease it offers makes it likely an employer will use more data sources and gain clear benefits in terms of finding the best candidates, while meeting the company’s legal hiring obligations. It also helps deal with the legal oversight issues around the search and sourcing process. For example, the OFCCP places an obligation on federal contractors and their suppliers to track job applicants and document how they were processed. The result – an applicant flow summary. Reporting under the applicant flow summary can be complex and arduous, so it is important for employers to limit the number of candidates who fall into this reporting category. The part of the applicant flow summary requirement relevant to candidate sourcing under the Talemetry Match solution is the OFCCP’s so called “InternetTalent Technology Corporation 4Whitepaper: Talemetry and United States Legal Compliance in Recruiting and Hiring
  5. 5. Applicant Rule”. The rule defines when a job seeker actually becomes an applicant and, hence, is subject to reporting under an employer’s applicant flow summary in the context of Internet recruiting. In many ways the Internet Applicant Rule is very simple. Under the rule, a person becomes an applicant if they (1) expresses interest in a job through an electronic medium, (2) are considered for a particular position, (3) have the basic qualifications required for the position, and (4) do not withdraw from consideration. Most, and certainly all mainstream, applicant tracking systems have in place tracking and auditing to comply with the Internet Applicant Rule for job seekers applying for a job through the company’s talent portal. This matches the OFCCP’s historical view that most hires come from job seekers who are actively seeking a job, and who apply for one which interests them. While, at some stage all hires became active job applicants, in today’s recruiting world many, and in many recruiters’ eyes, the best candidates are “passive.” They will not actually have applied for a posted job, and may not even be aware of the employer seeking to fill a position. It is with this pool of potential applicants that the Talemetry Match solution operates. As these candidates do not fit the definition of the Internet Applicant Rule per se, they are not applicants under that rule, and therefore are only subject to the more limited record keeping obligations OFCCP has set with respect to passive candidates. Here Talemetry Match automatically records the required information so an employer can comply with its OFCCP obligations. In addition, when a recruiter finds a potential great fit for a job they can easily, through the Talemetry Match interface, encourage the individual to apply for the job through the Company’s talent portal. The candidate is therefore captured by the company’s applicant tracking system, where they become an Internet Applicant and all the required reporting obligations and workflows are maintained by the applicant tracking system. Thus the audit obligations placed on sourcing passive candidates are separated from those existing under the Internet Applicant Rule. For passive candidates where recruiters use Talemetry Match the OFCCP has created record retention requirements for both internal and external databases. Internal databases are records of past applicants to other of the company’sTalent Technology Corporation 5Whitepaper: Talemetry and United States Legal Compliance in Recruiting and Hiring
  6. 6. jobs, or a listing of current company employees that has been loaded into the Talemetry Match database from the company’s applicant tracking system. External databases are subscriber databases provided by many job boards and databases created by scraping the Internet, etc. The OFCCP requirements are, for both internal and external databases, to retain the position for which each search of the database was made and the search criteria used. In addition, for internal databases, retention of each resume added to the database and the date each was added to the database is required. Finally, for external databases, in addition to being required to maintain a record of the date of the search, federal contractors are required to retain resumes of all job seekers who met the basic qualifications for the particular position and were considered by the company. What makes Talemetry Match so effective is the fact that it automatically saves to an audit log not only the details of every search made, but the details of every record on which a recruiter took an action, such as reviewing the resume, adding the resume to a list for follow-up, emailing the candidate to suggest the candidate apply for the job, etc. The name of the company’s recruiter who took the action also is attached to each audit record, for easy follow-up if (when) questions about “who looked at whom” arise. Audit logs must be retained from 1 to 5 years, depending on the circumstances, and not only can Talemetry Match do this, but the audit log file may be exported to be retained (and reported from) by the company in the system of its choice. Because the required record keeping is built into Talemetry Match, using this solution instead of a general Internet search engine to explore candidate availability not only provides better search results and the ability to search subscribed, proprietary databases, it also eliminates the OFCCP compliance risk created by using search technology that does not generate required audit trails. It also avoids the risk of bringing large volumes of passive candidate records into the company’s applicant tracking system, and then needing to comply with the more onerous requirements that system manages. In summary, the Talemetry Match solution provides an employer with a centralized product to search and review passive candidates in an OFCCP compliant manner. Not having such a product in place for one of the most common and important parts of a recruiter’s job means an employer is not considering the broadest range of candidates for open positions, and is limitingTalent Technology Corporation 6Whitepaper: Talemetry and United States Legal Compliance in Recruiting and Hiring
  7. 7. its ability to hire the best candidate for a job. It also means the employer is making its recruiters learn and use multiple sources and systems to search passive candidates. Finally, and most important, it is creating more questions about how the employer is meeting its OFCCP obligations, and opening the door to more likely challenges if an audit takes place. 3 Sourcing and EEOC and OFCCP Obligations The Equal Employment Opportunity Commission (EEOC) and OFCCP rules in the sourcing area focus on ensuring that companies offer employment opportunities to the broadest, most diverse, range of potential applicants. This requirement can be inadvertently breeched by companies that limit their searches for both passive and active candidates and, as a result, produce a pool of candidates far less diverse that might be possible. The Talemetry Broadcast solution enables a company to easily meet requirements to post (advertise) their job openings broadly, including to diversity-targeted job boards. In addition the Talemetry Connect product allows the posting of job opportunities to the company’s page in social media sites such as Facebook and Google+, and to the company’s Twitter feed to target demographic groups that may not be as active on more traditional job boards. While Talemetry Broadcast and Connect help give companies a compliance solution for advertising to active job candidates, diversity requirements when reviewing passive job candidates is often overlooked. Searching for passive candidates using only one source may be problematic under EEOC and OFCCP rules, depending upon the makeup of the source database being searched. For example, several leading employment law attorneys have raised concerns that a company only searching the LinkedIn database for candidates may be off-side the EEOC and OFCCP rules, given that the LinkedIn database currently falls far short of reflecting the ethnic diversity of the United States. Talemetry Match offers a solution to this problem by enabling a company to conduct searches for passive candidates across multiple data sources at the same time. A company can ensure EEOC/OFCCP compliance in this area by thoughtful subscription to a number of databases that, together, offer a diverse range of potential candidates, all of which are searched together through the Talemetry Match search interface.Talent Technology Corporation 7Whitepaper: Talemetry and United States Legal Compliance in Recruiting and Hiring
  8. 8. 4 Summary Sourcing is one of the highest value activities a recruiter can perform to find and hire top talent for their company. With the advent of new tools and sources from the social media, opportunities to make a real impact on hiring results exist. However companies must understand how current laws and regulations impact the way these new tools and sources must be used to be legally compliant. Talent Technology’s Talemetry Match, Connect, and Broadcast solutions were built to enable modern recruiters to take advantage of leading edge technology and both traditional and new sources of passive and active candidates, while helping to ensure their companies stay on-side with their legal compliance obligations.Talent Technology Corporation 8Whitepaper: Talemetry and United States Legal Compliance in Recruiting and Hiring