- Government contractors are required to solicit the race and gender of applicants, which enables OFCCP to evaluate the employer's selection decisions at every step of the hiring process;
- Government contractors are required to prepare annual impact ratio analyses of the impact that their selection process has on different genders and races, and when the employer is duplicating applicants over and over, moving them from requisition to requisition, it increases the likelihood of producing statistically significant adverse impact in hiring; and
- Government contractors should want to use the OFCCP's definition of Internet Applicant, but also are expected to stage every applicant who was actually considered for a job opening so that the employer can identify which applicants made it past what stage of the hiring process.
Government contractor recruiters do not have that luxury. The more that recruiters in government contractor workplaces move candidates across requisitions, the greater the risk that OFCCP views the hiring process as one continuous applicant pool. In contrast, when applicants are considered only within the requisition to which they applied, and in no other, the applicant pools stand a greater chance of being evaluated for equal opportunity in silos. These silos become important when the racial and gender composition of the applicant pools happen to be very different, even just by chance.
Same Job Title Applied to as Hired Into, Same Manager: Least Problematic
In this scenario, the employer has an ongoing hiring process for a commonly-filled job title: Call Center Customer Service Representative. Once the recruiter has screened candidates for basic qualifications, the same hiring manager is evaluating candidates for the opening. When the employer sets up its mathematical equations to evaluate equal employment opportunity in the hiring process, the fact that an applicant applied to one requisition but was moved into a different requisition for the same job title can be accounted for mathematically, but only if the recruiter has done his or her job of dispositioning the candidate correctly. It is relatively easy to trace the applied-to requisition and the hired-into requisition. It would be a best practice to disposition the applicant in both requisitions. In requisition 1, assuming the individual was not actually considered for the opening, the disposition might read "moved to another requisition" or "not considered," and in requisition 2, where presumably the candidate was actually considered for the opening, the disposition would be something more substantive, such as "not qualified" or "qualified but not interviewed" or "interviewed but not hired" or "hired." There are many other ways of conveying the stage that the candidate reached in the second requisition and the outcome of that stage. When the same hiring manager is making decisions for the same title, and the recruiter has done a good job of assigning dispositions that track the Internet Applicant regulation, it is still relatively easy to develop mathematical analyses that model the employer's selection process without over-inflating the applicant pools.
It is okay for the recruiter to copy over the applicants from the first requisition and populate them in a new requisition without making the candidates re-apply, but again, it is critical that the recruiter disposition them accurately in the applied-to requisition and the hired-into requisition.
Dispositions in req 1 such as "req filled" or "more qualified candidate selected," are problematic, though, because it's not clear whether the person was actually looked at in req one or not. The recruiter needs to convey with a disposition whether the applicant was or was not considered in req 1. For any candidate who was actually considered in req 1, the recruiter needs to record the substantive outcome of the employer's review process in that requisition, too.
If the hiring process is not ongoing and continuous, and the hiring manager is making separate discreet hiring decisions on very different dates, and recruiters have the flexibility to reach back into an old req and move candidates into a new req, without making the candidate re-apply, it conflates the second applicant pool. OFCCP will likely evaluate the employer's hiring data by asserting that every candidate in the first requisition pool who was not actually considered for the opening should have been considered for the second vacancy. The applicants who applied in the later time frame obviously were not actually considered for the earlier opening, but if the separateness of the requisition process is not preserved, the second pool is going to end up being much larger than the first one. If some candidates from the earlier requisition are moved (by the employer) into the second opening, the burden will be on the employer to explain why all of the non-hired candidates in the first requisition were not moved over.
Same Job Title Applied to as Hired Into, Different Hiring Manager
In this scenario, there is a common recruiter, screening expressions of interest but routing them in different directions, for different hiring managers to consider. The candidate applied under one requisition, but was not the most qualified candidate, and perhaps was a very strong interviewer. Rather than starting from scratch with a completely new applicant pool to screen, the recruiter takes Manager 1's qualified interview candidates and duplicates the information in requisition 2, sending them over to Manager 2 to consider for an interview. It will be important that the candidate be dispositioned in each of the requisitions.
Mathematically, it is still relatively simple to know how many people were hired into this job title and how many times each applicant was considered for which opening(s). When reconciling this applicant data, it is important to use a combination of application date, requisition date, manager name, and disposition when evaluating candidates for bona fide duplicates.
But, nonetheless, the employer has destroyed the separateness of the requisitions, and the OFCCP now has evidence of one continuous hiring pool.
Different Job Title Applied to Versus Hired Into, but in the Same AAP Job Group
In this scenario, the employer has similar types of roles, but different job titles are being sourced by the recruiters. The applicant applied for the Accounts Payable Clerk, which maps into AAP job group 5A, but she was not a good fit for this job opening because the applicant did not meet the minimum requirements for this particular role. When the recruiter prescreened her, though, the recruiter learned that the candidate is a veteran. Not long after being dispositioned "not qualified' in the Accounts Payable Clerk opening, a Financial Specialist role opens, and without the applicant herself applying to the Financial Specialist role, the recruiter moves the candidate over to the second job and sends the hiring manager her application. The recruiter thinks she is doing right by the veteran in looking for additional opportunities in the workplace for which the veteran might be entitled.
The problem, now, is that in OFCCP's eyes, everyone in the original Accounts Payable Clerk applicant pool should have been considered for the Financial Specialist opening. Why did the recruiter cherry-pick this one candidate? Were there other veteran candidates in the Accounts Payable Clerk requisition who also were qualified for the Financial Specialist opening? How does the recruiter know who is a veteran and who is not? Is the self-identification data visible?
And, the employer still has to model the selection process mathematically to evaluate it for equal opportunity. The title hired into and title applied to do not match. Hires go into the numerator, but for the job title, "Financial Specialist," what goes in the bottom half? Just the one application that the recruiter picked out of the first req? The entire Accounts Payable Clerk pool?
Mathematically, OFCCP will want to assert that the applicant pool for the Financial Specialist opening is not just the individual who the recruiter moved over to that req plus those who applied directly to the Financial Specialist Req. It's everyone in the Financial Specialist req plus all the applicants from the Accounts Payable Clerk requisition, because the employer exercised its discretion to move one person over, who did not apply to that opening. The application will reflect that the candidate applied for the Accounts Payable opening but was hired into a Financial Specialist job title, and now there is a mismatch.
If the employer had not moved over the candidate itself, but had insisted that the candidate apply to the req (so there would be evidence of two separate applications for the candidate: one to the Accounts Payable Clerk and one to the Financial Specialist), then there would be no basis for the OFCCP to insist on expanding the applicant pool for the Financial Specialist job with all the Accounts Payable candidates. There would be an application from the candidate to the Financial Specialist role and a hire into the Financial Specialist role. Title applied for and title hired into are a match. One person might be a duplicate applicant to the two different roles, not an entire applicant pool being duplicated.
Different Job Title in a Different Job Group
In this scenario, the employer does not know until it begins to interview the candidate whether the candidate possesses the qualifications for different levels of jobs, which are mapping into different AAP job groups. For example, the individual submits one application and "checks off" that he wants to be considered for "any" job. He does not apply to a specific job title.
The employer screens the application, and based on his work experience as a machinist, invites him to come in and interview. The employer has openings for both the Machinist job and the Machinist helper job. The employer is not able to determine which of the two jobs is the better fit on paper (off the application) until it talks to him in depth about his actual work experience. What this employer considers a Machinist may be work being done at a more advanced skill level than this person has done in the past, and a better fit might be for the Machinist Helper.
The employer has two different job groups for Skilled Craft Workers and for Helpers. If the applicant is not required to identify precisely what jobs he (or she) is applying for, the employer is not going to be able to refute OFCCP's efforts to take the entire applicant pool across the entire AAP cycle and duplicate it in both sets of job group hiring analyses. If the job group that includes Machinists also includes Welders, does that mean that all the Helper applicants will be viewed as if they applied to Welder jobs, too? Yes, if the employer has discretion to consider applicants who applied to "any" job for Welder jobs, too.
If the employer is not requiring the candidate to apply to a specific job, much less a specific requisition, it also runs the risk that OFCCP will examine the placement of these individuals. Is the employer taking applicants of one race (Black) and steering them into the Helper role and taking applicants of another race (White) and steering them into the higher-paying craft worker roles?
If the candidate is not selecting the job to which he or she is applying, and the employer's recruiters or hiring managers are moving candidates around at the employer's discretion, the placement claim becomes harder to defend.
Different Job Titles, in Different Job Groups, Across Multiple AAP Cycles
Typically, the employer aggregates the hires and applicant data using the same affirmative action plan structure that it developed for its utilization or goals analysis, meaning that more often than not, the employer evaluates this data by affirmative action job group. If the employer is selected for an OFCCP compliance review in the first six months of its plan year, it typically is submitting 12 months of data. If the employer is selected in the last six months of its plan year, it typically is submitting 18-23 months of data. If the OFCCP calculates statistically significant pattern and practice discrimination in hiring from the initial audit submission in a particular job group off the first 12 months of data, it might ask for an additional year of data from the prior year.
| Employer's AAP data cycle | Date on which employer receives audit letter | Parameters of data submitted initially to OFCCP | If adverse impact, what additional data may be requested |
| 1/1/17-12/31/17 | March 23, 2018 | 1/1/17-12/31/17 (12 months) |
3/23/16-12/31/16 and 1/1/18-3/23/2018 |
| 1/1/17-12/31/17 | July 20, 2018 | 1/1/17-6/30/18 (18 months) |
7/20/16-12/31/16 and 7/1/17-7/20/18 |
| 1/1/17-12/31/17 | November 20, 2018 | 1/1/17-10/31/18 (22 months) |
11/20/16-12/31/16 and 11/1/18-11/20/18 |
If government contractors do not silo their selection process into separate requisition pools, and recruiters can move candidates who applied in late 2017 into the 2018 applicant pools, the OFCCP is going to run them together, across the two-year time period. Every applicant will be presumed by OFCCP to have been considered for every job opening that occurred after the candidate applied. If the candidate applied in March 2017 for a job opening that was filled in April 2017 by someone else, and recruiters have the authority and ability to move candidates from applicant pool to applicant pool without having the candidate re-apply, when another job opportunity became available in June 2017, the OFCCP would presume that all non-selected candidates from the March applicant pool should have been considered for the May opening. That principle is carried forward throughout the entire two-year data period. One big applicant pool, where every single applicant is presumed to have been considered and qualified for each opening thereafter.
Summary
Some government contractor employers are going to continue to allow recruiters to move applicants from one requisition to another and not have the candidate re-apply, because they view the risks associated with being overly rigid and not flexible in the hiring process to outweigh the potential harm in an OFCCP compliance review. They are going to keep sanctioning the practice until they are audited. Other employers, who are in the midst of dealing with OFCCP in a compliance review or who have had to respond to OFCCP's allegations of a pattern and practice of disparate treatment in a compliance review, will appreciate the importance of preserving the silo-ed requisition defense. OFCCP is not going to bring an enforcement action asserting a pattern and practice of discrimination in hiring using a two-year data pool if the employer has taken every precaution to silo applicants into a requisition based system and prohibited its recruiters from moving around applicants who have not themselves applied to each opening.
It may be rigid and time-consuming, but it is by far a best practice for government contractors in light of how OFCCP has enforced its Internet Applicant Rule.