Talemetry and united states legal compliance in recruiting and hiring

Whitepaper:
Talemetry and United States Legal
Compliance in Recruiting and Hiring

Date: 19 November 2012

Talent Technology Corporation

Table of Contents
1 TALEMETRY AND UNITED STATES LEGAL COMPLIANCE IN RECRUITING
AND HIRING 3

2 SOURCING AND OFCCP REQUIREMENTS 4

3 SOURCING AND EEOC AND OFCCP OBLIGATIONS 7

4 SUMMARY 8

Talent Technology Corporation 2
Whitepaper: Talemetry and United States Legal Compliance in Recruiting and Hiring

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.


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 “Internet


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’s


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 limiting


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.


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.


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