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Beware of Rip Currents: Managing the Ebb & Flow of Applicants Presented by: Cara Crotty Sylvia Smith Constangy, Brooks & Smith, LLP. < 500 501 - 2,000 2,001 - 5,000 5,001 – 10,000 > 10,000. 13% 13% 17% 17% 40%. Poll How many employees are there in your company?. Less than 5 5-20

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Poll How many employees are there in your company?

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Poll how many employees are there in your company

Beware of Rip Currents:Managing the Ebb & Flow of ApplicantsPresented by:Cara CrottySylvia SmithConstangy, Brooks & Smith, LLP


Poll how many employees are there in your company

< 500

501 - 2,000

2,001 - 5,000

5,001 – 10,000

> 10,000

13%

13%

17%

17%

40%

PollHow many employees are there in your company?


Poll how many aaps does your company develop annually

Less than 5

5-20

25-40

Who knows? I’ve lost count!

10%

23%

27%

40%

PollHow many AAPs does your company develop annually?


Imagine this

Imagine this …

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

  • $540,000 for alleged discrimination against 39 applicants

  • $288,333 for alleged discrimination against 248 applicants

  • $1.2 million for alleged discrimination against 750 applicants

  • $980,595 for alleged discrimination against 834 applicants


Rampant discrimination

Rampant Discrimination?

OR

  • No reasons to explain rejections

  • Inconsistent application of selection procedures

  • Lack of records

    Poor recordkeeping is single biggest reason for findings of discrimination.


Avoiding disparities

Avoiding Disparities

  • Have to know why people were not hired

    • DISPOSITION CODES!

  • Have to train hiring managers and/or recruiters to apply same standards

    • Degree requirements

    • Poor work history

    • Prior experience

    • Convictions

  • Must comply with recordkeeping requirements


Poll how does your company comply with the recordkeeping requirements for applicants

State of the art electronic ATS

Excel or other manual database

Each establishment manages their own…. Who knows?

Paper applications only

We only worry about this when audited

0%

0%

0%

0%

0%

PollHow does your company comply with the recordkeeping requirements for applicants?


The internet applicant rule is your friend

THE INTERNET APPLICANT RULE IS YOUR FRIEND

C O N S T A N G Y

B R O O K S & S M I T H, L L C

The Employers’ Law Firm, Since 1946

STEP ONE:

Individual submits expression

of interest in employment

through Internet or

related technologies

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

”Consider” = You assess substantive information provided in expression

of interest with respect to qualifications involved with a particular position

STEP TWO:

You consider the individual

for employment in

a particular position

You may establish protocol, including data management technologies,

to refrain from considering some expressions of interest

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) relevantto the job

Individual can withdraw by: (1) express statement; (2) repeated

non-responsiveness; or (3) information provided in expression of interest

STEP FOUR:

Individual does not remove himself

from selection process prior

to receiving an offer


With v without disposition codes

100 Applicants

50 M

50 F

20 Hires

15 M

5 F

IRA = -2.49 SD

100 Applicants

Unable to Contact

1 M

10 F

Not interested

2 M

10 F

Don’t meet BQ

5 F

20 Hires/Selections

Declined offer

5 F

IRA = .68 SD

With v. Without Disposition Codes


Standard for disparate impact claims

Standard for Disparate Impact Claims

  • An unlawful employment practice based on disparate impact is established only if:

    • plaintiff demonstrates that employer uses a particular employment practice that causes disparate impact and employer fails to demonstrate that the challenged practice is job related and consistent with business necessity OR

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


Poll how many employees are there in your company

But . . .

  • Plaintiff shall demonstrate that each particular challenged employment practice causes a disparate impact

    • Except that if plaintiff can demonstrate that the elements of the decision-making process are not capable of separation for analysis, the decision-making process may be analyzed as one employment practice.


Two step process

Two-Step Process

  • Plot the steps in your selection process

  • Tailor reasons for non-selection within each step


Plot selection process

Plot Selection Process

  • Application Conformity

  • Application Review & Assessment

  • Phone Pre-Screen

  • Test

  • Manager Interview

  • Reference Check

  • Offer


Poll how many disposition codes does your company use

PollHow many disposition codes does your company use?

  • I don’t know what a disposition code is.

  • < 10

  • 11 – 40

  • > 40

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


Tailor disposition codes within each step step 1

Tailor Disposition Codes within Each Step:Step 1

  • Application Conformity

    • Incomplete (Define!)

    • Not signed

    • Not received by cutoff date

    • Not submitted in accordance with requirements

    • Expired

    • No job vacancy


Step 2

Step 2

  • Application Review & Assessment

    • Does not meet BQ (education)

    • Does not meet BQ (experience)

    • Ineligible for Rehire

    • Cannot work required shift

    • Excessive salary requirements

    • Cannot travel


Step 3

Step 3

  • Phone Pre-Screen

    • Lack of knowledge (explain)

    • Interpersonal skills (explain)

    • Lack of interest (explain)

    • Not willing to relocate

    • Not willing to travel

    • Unsatisfactory interview (explain)

    • Does not meet BQs (explain)

    • Unable to contact


Step 4

Step 4

  • Test

    • Failed (list test)

    • Did not complete

    • No show


Step 5

Step 5

  • Manager Interview

    • Lack of knowledge (explain)

    • Interpersonal skills (explain)

    • Lack of interest (explain)

    • Not willing to relocate

    • Not willing to travel

    • Unsatisfactory interview (explain)

    • Does not meet BQs (explain)

    • Unable to contact

    • No show


Poll how do you know results of manager interviews

HR has to track down manager each time to get reason for non-selection.

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

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

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

0%

0%

0%

0%

PollHow do you know results of manager interviews?


Step 6

Step 6

  • Reference Check

    • GPA/Education

    • Prior Employers

    • Conviction

    • Inconsistencies (explain)


Step 7

Step 7

  • Offer Declined

    • Money

    • Hours

    • Travel

    • Other


Other categories

Other Categories

  • Withdraws (note pre v. post offer)

  • Not eligible to work in U.S.

  • Later discovered info (fraudulent)

  • Not considered

    • Position not filled

    • Hiring freeze

    • Not “considered” per Internet App Rule

  • Hired more qualified candidate

  • Other (explain)


Analyze each component of selection process

Analyze Each Component of Selection Process


Poll do you analyze the different components of your selection process

Yes, always

No, never

Only when there is disparate impact overall

Sometimes, i.e., to determine if test has impact

I have no idea, but I’m going to find out when I get home from this conference!

0%

0%

0%

0%

0%

PollDo you analyze the different components of your selection process?


Unique applicant issues

Unique Applicant Issues

  • Temp to Perm


Poll how do you track temp to perm hires

PollHow do you track “temp to perm” hires?

  • We don’t and have 100% hiring rates.

  • All temps are considered applicants.

  • We rely on the temp agency to do that.


Unique applicant issues1

Unique Applicant Issues

  • Temp to Perm

  • Recruitment & Temporary Workers


Poll how do you satisfy recruitment requirements for temp employees

PollHow do you satisfy recruitment requirements for temp employees?

  • We rely on temp agency.

  • We rely on temp agency and include provision in contract.

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


Unique applicant issues2

Unique Applicant Issues

  • Temp to Perm

  • Recruitment & Temporary Workers

  • Hiring for Position Different than Applied


Poll for what positions can individuals apply

PollFor what positions can individuals apply?

  • Only a specific job opening

  • We don’t require applicants to specify a job

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


Unique applicant issues3

Unique Applicant Issues

  • Temp to Perm

  • Recruitment & Temporary Workers

  • Hiring for Position Different than Applied

  • CEO’s Niece


Poll how do you treat employee referrals

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

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

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

It depends on who referred them.

0%

0%

0%

0%

PollHow do you treat employee referrals?


Unique applicant issues4

Unique Applicant Issues

  • Temp to Perm

  • Recruitment & Temporary Workers

  • Hiring for Position Different than Applied

  • CEO’s Niece

  • Job Fairs


Poll how do you retain resumes from job fairs

PollHow do you retain resumes from job fairs?

  • All resumes are retained and entered into internal database.

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

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


Unique applicant issues5

Unique Applicant Issues

  • Temp to Perm

  • Recruitment & Temporary Workers

  • Hiring for Position Different than Applied

  • CEO’s Niece

  • Job Fairs

  • Employees Recruited from Outside U.S.


Poll do you track applicants recruited from outside the u s

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

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

We track and analyze like all other applicants.

0%

0%

0%

PollDo you track applicants recruited from outside the U.S.?


Unique applicant issues6

Unique Applicant Issues

  • Temp to Perm

  • Recruitment & Temporary Workers

  • Hiring for Position Different than Applied

  • CEO’s Niece

  • Job Fairs

  • Employees Recruited from Outside U.S.

  • Applicants Hired Outside of AAP Year


Poll how do you manage applicants hired outside of aap year

We only count people in year they applied.

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

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

0%

0%

0%

PollHow do you manage applicants hired outside of AAP year?


Unique applicant issues7

Unique Applicant Issues

  • Temp to Perm

  • Recruitment & Temporary Workers

  • Hiring for Position Different than Applied

  • CEO’s Niece

  • Job Fairs

  • Employees Recruited from Outside U.S.

  • Applicants Hired Outside of AAP Year

  • Recruits that are never “considered”


Poll do you give priority to referrals from recruitment sources

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

No, all applicants are treated the same.

It depends on the recruitment source.

0%

0%

0%

PollDo you give “priority” to referrals from recruitment sources?


Thank you

THANK YOU!

Cara Crotty, Esquire

[email protected]

803-667-4110

Sylvia Smith, AAP Specialist

[email protected]

404-230-6741


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