Recruiting Compliance in 2019: What You Need to Know
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Recruiting Compliance in 2019: What You Need to Know

According to the findings in Employer Outlook 2018, a report from job board Indeed, 61% of recruiters expect to hire more people in 2018 than they did in 2017, and 42% of employers are worried they won’t be able to find the talent they need. That’s a whole lot of recruiting. And, a whole lot of compliance to keep up with right off the bat in the employee lifecycle.

While recruiting compliance is often viewed as a confusing list of conditions that can make a recruiter’s life difficult, it’s a necessity for any business. The Equal Employment Opportunity Commission (EEOC) and Office of Federal Contract Compliance Programs (OFCCP) requirements are put in place to ensure that companies’ hiring practices do not discriminate against certain protected classes of applicants. If recruiters fail to abide by these regulations, your company can be in big trouble, facing lawsuits, large fines, and often irreparable damage to your brand.

Another new area of compliance added to recruiters’ checklists relates to salaries. This year, some jurisdictions – California, Massachusetts, Puerto Rico, and San Francisco – have enacted laws either banning recruiters from asking applicants for salary histories and/or requiring companies to pay employees equally regardless of gender. It’s important to review your recruiting practices and implement training to ensure recruiters understand and don’t violate these new laws.

Employers in tech industries need to be especially mindful of compliance regulations. In November 2017, the U.S. Government Accountability Office (GAO) issued a report on OFCCP’s and EEOC’s approaches to investigating tech industry employers. The GAO report noted that while the estimated percentage of minority technology workers overall increased from 2005 to 2015, no growth occurred for female and Black workers. One factor the GAO noted as a reason for this lack of growth is company hiring practices.

In his September 12, 2017 remarks, the Acting Assistant Attorney General, Andrew Finch, quoted new antitrust guidance for HR practitioners and reiterated that, “…naked agreements among employers not to recruit certain employees, or not to compete on employee compensation, are per se illegal” and may be criminally prosecuted.

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The EEOC

Privately-owned companies, state agencies and labor unions with 15 or more employees who have worked in that capacity for a minimum of 20 calendar weeks are required to comply with EEOC regulations. In FY 2017, 84,254 discrimination charges were filed with the EEOC, and they project that nearly 87,000 employment discrimination charges will be filed against private sector employers in FY 2018. The EEOC secured $355.6 million for victims of employment discrimination in private sector and state and local government workplaces.

The OFCCP

All federal contractors who conduct business with the government in excess of $10,000, fall under the jurisdiction of the OFCCP and, as such, cannot discriminate against employees based on their race, color, religion, sex and national origin. The law also mandates contractors to make efforts to employ qualified individuals with disabilities, Vietnam-era veterans and other covered veterans.

According to the OFCCP’s enforcement statistics, four frequently cited violations specifically pertaining to recruiters were found during compliance reviews:

  • Job Listings: At a minimum, ALL job openings (including all union jobs) must be listed with local and state employment agencies except for:

    • Executive and top management positions
    • Positions that will be filled internally only
    • Positions lasting three days or less
  • Poor Outreach/Positive Recruitment: Ensure good relationship is built with the outreach partners. This will make the process faster and easier when requesting referrals for qualified candidates and posting for positions.

  • Poor evaluation of effectiveness of outreach and positive recruitment: Track referral sources from applicants and positive outreach activities to help better evaluate outreach and recruitment efforts. Although it’s not required, following the OFFCP’s Criteria for Evaluation to help evaluate the outreach and recruitment activities can keep you out of hot water.

    • Criteria for Evaluation:
      • Did the activity attract qualified applicants with disabilities and/or protected veterans?
      • Did the activity result in the hiring of qualified individuals with disabilities and/or protected veterans?
      • Did the activity expand company’s outreach to individuals with disabilities and/or protected veterans in the community?
      • Did the activity increase company’s ability to include individuals with disabilities and/or protected veterans in its workforce?

  • Recordkeeping: Out of all the recordkeeping violations, applicant data is the most vulnerable due to the complexity of data tracking. Collecting and retaining proper applicant data has four primary components. In the event of an OFCCP audit, having applicant data on file can better tell the “story” for each applicant during the selection process (e.g., did not meet basic qualification, phone screened, interviewed, offered, etc.).

Make Sure Recruiters Toe the Line

Discrimination during the recruiting process is typically not intentional; it’s often due to lack of training or sloppy policies. Inadvertent industry stereotypes can be a challenge however. For example, highly qualified women often have a difficult time getting hired in fields such as engineering or construction.

As the number of violations and lawsuits continue to rise, it’s critical that employers educate recruiters on proper interview procedures. Plus, employers should conduct an audit of all job descriptions and requirements to remove possible biases. Doing so will help you meet recruiting compliance requirements down the road.

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