Poll How many employees are there in your company?

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

2. < 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?

3. 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?

4. 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

5. 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.

6. 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

7. 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?

8. 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

9. 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

10. 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

11. 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.

12. Two-Step Process • Plot the steps in your selection process • Tailor reasons for non-selection within each step

13. Plot Selection Process • Application Conformity • Application Review & Assessment • Phone Pre-Screen • Test • Manager Interview • Reference Check • Offer

14. 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.

15. 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

16. 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

17. 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

18. Step 4 • Test • Failed (list test) • Did not complete • No show

19. 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

20. 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?

21. Step 6 • Reference Check • GPA/Education • Prior Employers • Conviction • Inconsistencies (explain)

22. Step 7 • Offer Declined • Money • Hours • Travel • Other

23. 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)

24. Analyze Each Component of Selection Process

25. 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?

26. Unique Applicant Issues • Temp to Perm

27. 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.

28. Unique Applicant Issues • Temp to Perm • Recruitment & Temporary Workers

29. 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.

30. Unique Applicant Issues • Temp to Perm • Recruitment & Temporary Workers • Hiring for Position Different than Applied

31. 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.

32. Unique Applicant Issues • Temp to Perm • Recruitment & Temporary Workers • Hiring for Position Different than Applied • CEO’s Niece

33. 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?

34. Unique Applicant Issues • Temp to Perm • Recruitment & Temporary Workers • Hiring for Position Different than Applied • CEO’s Niece • Job Fairs

35. 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.

36. 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.

37. 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.?

38. 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

39. 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?

40. 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”

41. 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?

42. THANK YOU! Cara Crotty, Esquire ccrotty@constangy.com 803-667-4110 Sylvia Smith, AAP Specialist ssmith@constangy.com 404-230-6741