Jennifer Gladstone Dillon Wuerth Curt Schwall, CCEP

Editor-in-Chief Head of Partnerships Vice President of Compliance and

EBI’s Screening News Network Newton Software Regulatory Affairs
EBI
www.ebiinc.com http://newtonsoftware.com
www.ebiinc.com
 The information contained within this
presentation is for general informational
purposes only and does not constitute
legal advice. Participants are advised to
contact professional legal counsel for
legal advice.
Today’s Agenda

Part I: Compliance in Recruiting

Part II: Compliance in Screening

Part III: Q&A

The Problem: Implicit Bias
“The attitudes or stereotypes that affect our understanding, actions, and decisions in an unconscious manner.
These biases, which encompass both favorable and unfavorable assessments, are activated involuntarily and
without an individual’s awareness or intentional control.”

In recruitment this means that, whether we realize it or not, our brain makes associations with people that we
can/can’t relate to automatically. These associations can be very helpful & positive, but can also be a detriment
to building a diverse, productive workforce.

So how does an organization set up their recruitment organization in a way that

minimizes their employees’ implicit biases?

http://kirwaninstitute.osu.edu/research/understanding-implicit-bias/

© 2017 EBI Recruiting & Hiring Compliance Confidence 5

Don’t Change the Person. Change the Process!

DO DON’T
Simplify your recruitment process Create unnecessary steps/complexity in your
process
Standardize your recruitment process Run “Unstructured” interviews

Understand there will always be a human variable Abandon diversity goals- you can always strive for
in hiring more
Ensure you have systems in place to capture any Allow the human variable to reign supreme in your
and all recruitment data process

© 2017 EBI Recruiting & Hiring Compliance Confidence 6

DEFINITIONS
Affirmative Action
A set of laws, policies, guidelines, and administrative practices intended to end and correct the effects of a specific form of
discrimination. These include government-mandated, government-sanctioned, and voluntary private programs that tend to focus on
access to education and employment, specifically granting special consideration to historically excluded groups such as racial minorities
or women (protected classes). The impetus toward affirmative action is redressing the disadvantages associated with past and present
discrimination. Further impetus is a desire to ensure public institutions, such as universities, hospitals, and police forces, are more
representative of the populations they serve.

Covered federal contractors and subcontractors must develop, implement, and annually update an AAP for each U.S. establishment
of 50 or more employees, even if those facilities do not contribute to the performance of any government contracts. A facility of less
than 50 employees may have its own small plan or “roll up” into the plan of the facility to which its workforce reports or from where
its personnel functions are handled.

An Affirmative Action program / plan includes those policies, practices, and procedures that the employer implements to ensure that all
qualified applicants and employees are receiving an equal opportunity for recruitment, selection, advancement, and every other term
and privilege associated with employment.

• Sample Affirmative Action Plan

• Opinion on which companies need an AA Plan (SHRM members only)

© 2017 EBI Recruiting & Hiring Compliance Confidence 8

The EEOC
The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal
to discriminate against a job applicant or an employee because of the person's race, color, religion, sex (including
pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information. It
is also illegal to discriminate against a person because the person complained about discrimination, filed a charge of
discrimination, or participated in an employment discrimination investigation or lawsuit.

Most employers with at least 15 employees are covered by EEOC laws (20 employees in age discrimination cases).
Most labor unions and employment agencies are also covered.

The EEOC has the authority to investigate charges of discrimination against employers who are covered by the law. Our
role in an investigation is to fairly and accurately assess the allegations in the charge and then make a finding. If we find
that discrimination has occurred, we will try to settle the charge. If we aren't successful, we have the authority to file a
lawsuit to protect the rights of individuals and the interests of the public. We do not, however, file lawsuits in all cases
where we find discrimination.

Visit the EEOC

© 2017 EBI Recruiting & Hiring Compliance Confidence 9

The OFCCP
As a Division of the DOL, Office of Federal Contract Compliance Programs (OFCCP), protects workers, promotes diversity and enforces the laws.
OFCCP holds those who do business with the federal government—contractors and subcontractors—responsible for complying with the legal
requirement to take affirmative action and not discriminate on the basis of race, color, sex, sexual orientation, gender identity, religion,
national origin, disability, or status as a protected veteran. In addition, contractors and subcontractors are prohibited from discharging or
otherwise discriminating against applicants or employees who inquire about, discuss or disclose their compensation or that of others, subject to
certain limitations.

2 Broad Categories of Government Contractors (GSA):

• Prime contractors bid on and win contracts directly from government agencies. After award, the prime contractor company is the entity that
is legally responsible for all aspects of fulfilling the contract, such as interacting with the government customer, recruiting staff, organizing and
managing teams of subcontractors, and meeting all delivery requirements. Both large and small businesses can serve as prime contractors.
• Subcontractors join prime contractors’ teams, usually to provide a specific capability or product. Subcontracting is an excellent way to enter
the government contracting market and to participate in larger-scale opportunities. The advantage of being a “sub,” is that you’ll be
responsible only for your area of expertise, not managing the entire contract. You can gain valuable experience (called “past performance”)
that will qualify you for future contracts. But note that you’ll be serving two customers: Your prime contractor will determine what
percentage of the work (called “workshare”) and which assignments (called “tasks”) you will receive. You may or may not work directly with
the government, at the discretion of your prime.

The OFCCP

© 2017 EBI Recruiting & Hiring Compliance Confidence 10

Protected Classes of Candidates & Employees
Age
40+
Some states have guidelines about younger employees
Disability
A person may be disabled if he or she has a physical or mental
condition that substantially limits a major life activity (such as
walking, talking, seeing, hearing, or learning).
A person may be disabled if he or she has a history of a disability
(such as cancer that is in remission).
A person may be disabled if he is believed to have a physical or
mental impairment that is not transitory (lasting or expected
to last six months or less) and minor (even if he does not have
such an impairment).
Genetic Information
An employer may never use genetic information to make an
employment decision because genetic information is not
relevant to an individual's current ability to work.
National Origin
Due to their being from a particular country or part of the world
Because of ethnicity or accent
Because they appear to be of a certain ethnic background (even if
they are not)
© 2017 EBI Recruiting & Hiring Compliance Confidence
Pregnancy
If a woman is temporarily unable to perform her job due to a
medical condition related to pregnancy or childbirth, the
employer or other covered entity must treat her in the same
way as it treats any other temporarily disabled employee
Race/Color
Because he/she is of a certain race
Because of personal characteristics associated with race (such as
hair texture, skin color, or certain facial features)
Because the person is married to (or associated with) a person of
a certain race or color
Religion
Protects not only people who belong to traditional, organized
religions, such as Buddhism, Christianity, Hinduism, Islam, and
Judaism, but also others who have sincerely held religious,
ethical or moral beliefs
Sex
Because of gender identity, including transgender status, or
because of sexual orientation is discrimination because of sex
in violation of Title VII
11
ATTRACTING & ENGAGING TALENT
Job Postings & Descriptions
Many organizations take a “spray and pray” method. It’s never worked for your garden, and it won’t work in recruiting. The right
combination of location, timing and diversification will reap a bountiful harvest.

• Recruit from outside your normal source pool. Always be on the lookout for new & differentiated sources
o Niche Job Boards
o Veterans Associations

• If required by OFCCP regulations (Gov’t Contractor), be sure to post your job to the appropriate ESDS (Employment Service Delivery
Systems)
o Check with CareerOneStop to figure out where you’ll need to post
 This usually is in the state where the majority of the job duties occur, or the home/reporting office of the job.
o This posting process can be tedious & unreliable, but during an OFCCP audit you’ll be glad you did

• This doesn’t mean you have to spend an exorbitant sum to post your jobs. Many organizations that work with people from protected
classes are absolutely free to use
o Work with systems that allow your jobs to be aggregated or distributed as part of the greater service or for a small additional fee

• Be sure to record all job postings, no matter how long they were posted or
o Where & when you posted the job
o Title, Location & Job Description

© 2017 EBI Recruiting & Hiring Compliance Confidence 13

Job Postings & Descriptions Masculine Feminine

Active Affectionate
Be aware of the language used in your job descriptions. Job seekers hold implicit biases just like your
employees, and can identify more closely with certain words & tonality. These can be related to gender,
Aggressive Cheerful
age, ethnicity and many other protected class identifications.

• Per significantly documented research, language is regularly and subconsciously associated with a Challenge Compassionate

specific gender
o The list on the right is a small sample of words from a Waterloo/Duke Study Decisive Empathetic

• Collate your current job descriptions and read them with an independent 3rd party Dominant Gentle
o Would you apply? Would they apply?
o Feel free to revise your descriptions, but make sure you create a new job opening when using the
Hierarchy Kinship
revised version

• As a government contractor, each job posting must identify the fact that you hold a government Outspoken Responsive
contract, along with a few other bits of information:
o A statement of your desire for priority referrals of protected veterans. Persistent Supportive
o The name and location of each hiring location within the state.
o Contact information for the official responsible for hiring at each location.
Stubborn Understanding
o Contact information for any external job search organizations used by the company.

© 2017 EBI Recruiting & Hiring Compliance Confidence 14

Minimum Qualifications
Current regulations allow employers to legitimately limit the number of applicants. Many employers use some
form of pre-application questionnaire to help ensure all candidates have the same basic level of qualification for
the position.

• There is an explicit difference between “Desired Qualifications” and “Minimum Qualifications”. Ensure that
these are formatted correctly in your description/app.

• Minimum Qualification questions are a legal tool, if and only if:

o Each question is only answerable with “YES” or “NO”
o The positive/negative response must correlate to the same type of candidate disposition for each candidate
o Every candidate still must be able to complete their application to the position

• Candidates who didn’t meet your “minimum qualifications” still must be included in your Applicant Flow Logs
per the OFCCP/EEOC

© 2017 EBI Recruiting & Hiring Compliance Confidence 15

Salary Questions
Salary Questions: this law makes it illegal to ask an applicant what their previous salary was.

• Partially intended to create pay parity and reduce historical pay gap for protected classes: i.e. - women,
minorities, veterans

• This regulation is in earlier stages of rolling out state by state, but can be
o Massachusetts
o New York City (not the whole state)
o Philadelphia
o California (goes into effect 1/1/18)
o Oregon
o Delaware
o New Orleans (not the whole state)

© 2017 EBI Recruiting & Hiring Compliance Confidence 16

INTERVIEWING & COLLABORATING
Structured Interviews
Most organizations run “unstructured” interviews. These unfold naturally through probing conversation, and can
be helpful to get to know someone… but can lead to compliance issues, and:

• Do not predict job success

• Allow for interviewers’ personal implicit biases (likeability rather than performance-driven)
• Do not allow for accurate candidate comparison
• Reviewing interview process and results during EEOC/OFCCP audit will uncover inconsistencies

“Structured” Interviews bring standardization to your process. Using a scorecard or interview guide is HIGHLY
recommended. They provide a number of benefits:

• Minimize implicit bias

• Bring uniformity to the questions asked of all candidates for a certain job
• Focus the interview content on factors essential for job success
• Allow for apples-to-apples comparison of candidates answers for a specific job
• Scorecards create comparable, quantifiable metrics out of hard-to-quantify characteristics & skills
• Be sure to consider context: keeping a hiring manager “batting average” or success rate is a great tool

© 2017 EBI Recruiting & Hiring Compliance Confidence 18

Interview Questions
DON’T ASK DO ASK
• How old are you? (or even estimate age) • After hiring the applicant or prior to application: Are
• Do you have children at home? How old are they? Who you over 18?
cares for them? Do you plan on having more? • After hiring the applicant: number and ages of
• What are the nature and/or severity of any disabilities children for insurance purposes
that you have? • Are you able to carry out the necessary job
• About financial status, wage attachments, outstanding assignments and perform them well and safely?
loans or obligations, or bankruptcy. • For necessary financial information for benefits, stock
• What is your discharge status? What branch did you options, and 401(k) after applicant is hired and at
serve in? applicant’s discretion
• How tall are you? How heavy are you? • Are you a veteran? Do you have any job-related
• Interviewer cannot ask whether the applicant has ever experience in the military?
been affiliated with a union. • If the candidate is able and willing to perform manual
labor, lifting, and other job requirements
• Can and should notify applicants of the corporation’s
union status
Remember: Your questions should focus on the requirements and qualifications relevant to success in the role.
Keep these in an interview guide/scorecard.

© 2017 EBI Recruiting & Hiring Compliance Confidence 19

Reasons For Non-Selection
Consistency & Standardization is KEY. The important things to record are When, Why and Who.

The OFCCP audit’s companies’ Applicant Flow logs, and will want a comprehensive record of all activity
• They will be interested in when the candidate fell out of the process
• They will also want to know precisely why a candidate fell out of the process
• Also important is who made the decision to remove the candidate from the process

Be careful in your phrasing, and don’t hesitate to work with a labor attorney. Systems can be helpful in
capturing all of this data and centralizing your reporting.

Automate these using data validation in excel or within your applicant tracking software
• The easier it is for you hiring managers to disposition candidates, the easier your life will be
• Uniformity of these reasons for non-selection allows you to gather and report on source values
• This consistency also helps remove bias or discriminatory practice from your disposition process

© 2017 EBI Recruiting & Hiring Compliance Confidence 20

DATA COLLECTION REQUIREMENTS
Record Keeping Obligations

Covered contractors subject to affirmative action regulations must retain documents and data regarding applicants and
employees for two years.

The new VEVRAA and Section 503 regulations require employers to maintain certain records relating to veterans and
disability status for three years.

Information related to a background check should be kept for a minimum of five years, which is the statute of
limitations for bringing an action based upon a consumer report.

Consequences
• Back pay awards or other “make whole” remedies (e.g., job offers, reinstatement, benefits, lost overtime, front pay,
bonuses, seniority, etc.) for “victims” of discrimination identified by the OFCCP. Each year the agency obtains millions
in back pay through settlement or litigation.
• Compensation adjustments (proactive and/or retroactive) to address pay equity issues.
• Other diversity- and EEO-related measures mandated by the OFCCP under a Conciliation Agreement (e.g.,
management training, outreach efforts, etc.).
• Required submission of progress reports to the OFCCP regarding the corrective action ordered by the agency.

© 2017 EBI Recruiting & Hiring Compliance Confidence 22

COMPLIANCE IN SCREENING
Ban the Box
• Purpose: For employers to consider the candidate’s qualifications before inquiring about an
individual’s criminal history.
• Enables ex-offenders to equally display qualifications prior to questions about their criminal history.
• Proliferation of Laws
o 29 states: CA, CO, CT, DE, GA, HI, IL, IN, KY,
LA, MD, MA, MN, MO, NE, NV, NJ, NM, NY,
OH, OK, OR, PA, RI, TN, UT, VT, VA, WI
o Over 150 cities and counties
• Ban the Box Jurisdictions “On Steroids”

© 2017 EBI Recruiting & Hiring Compliance Confidence 24

Know Your Laws: Timing of Background Checks
After First Interview After Conditional Offer of After EITHER First Live Interview or
Employment Conditional Offer of Employment
Montgomery Co., MD Austin, TX Illinois
Prince George’s Co., MD Portland, OR San Francisco, CA
Buffalo, NY Los Angeles, CA
Rochester, NY Baltimore, MD
Maryland New Jersey
Oregon Hawaii
Rhode Island

© 2017 EBI Recruiting & Hiring Compliance Confidence 25

EEOC Guidance- Factor in Criminal History Review
EEOC Factors (Criminal Records)

• The facts and circumstances surrounding the offense.

• The number of offenses for which the individual was convicted.

• The age of the individual at the time of conviction or release from prison.

• Evidence that the individual has performed the same type of work post-conviction, with the same or different
employer, without incidents of criminal conduct.

• The length and consistency of employment history before and after the offense.

• Any efforts of the candidate towards rehabilitation.

• Employment or character references obtained regarding the individual’s fitness for the particular position.

• Whether the individual will be bonded for the position.

© 2017 EBI Recruiting & Hiring Compliance Confidence 26

Making An Employment Decision- Individual Consideration!

• Identify Report Evaluator(s)

• Individualized Assessment
o Do not have automatic disqualifiers
• Scoring Matrices
o Pass/Review

© 2017 EBI Recruiting & Hiring Compliance Confidence 27

Disclosure and Authorization
Forms, forms, forms…
• Disclosure Form
o Don’t include extraneous information on Disclosure Form
• Authorization Form
o Can be combined with Disclosure Form, but be careful!
• State Forms and Requirements
o New York Correction Law 23A
o Summary of Rights Under the FCRA
o California Statement of Consumer Rights

© 2017 EBI Recruiting & Hiring Compliance Confidence 28

Adverse Action Processing
• Initiate PRIOR to a Final Decision
o Do not indicate a final adverse decision has been made until the end of the process
• Pre-Adverse Process
o Notice
o Copy of the Consumer Report
o Copy of A Summary of Your Rights Under the Fair Credit Reporting Act
• Determine Appropriate Waiting Period
• Halt Process for a Dispute
• Adverse Action Notice

© 2017 EBI Recruiting & Hiring Compliance Confidence 29

Adverse Action Processing: Jurisdictional Requirements

Reason for Denial Written Evaluation Required

Austin, TX New York City, NY
State of California Los Angeles, CA
Montgomery County, MD
Prince George’s County, MD
Philadelphia, PA
Portland, OR
Seattle, WA

© 2017 EBI Recruiting & Hiring Compliance Confidence 30

Do You Have a Background Check Policy?
• Background Checks are Complicated!
• Program Consistency
• Documentation of Compliance Policies and Procedures
• Risk Mitigation

© 2017 EBI Recruiting & Hiring Compliance Confidence 31

 HRCI: 329640
SHRM: 17-HZ0S4
Questions?

Jennifer Gladstone Dillon Wuerth Curt Schwall, CCEP

Editor-in-Chief Head of Partnerships Vice President of Compliance and
EBI’s Screening News Network Newton Software Regulatory Affairs
dillon@newtonsoftware.com EBI
newsroom@ebiinc.com o. (415) 423-3439 Cschwall@ebiinc.com
c. (203) 980-3487 o. 800-324-7700 x 399
c. (216) 272-5061
Resources
RECRUITING:

• OFCCP Compliance Guide: http://newtonsoftware.com/blog/2017/02/15/ofccp-compliance-guide/

• Compliance Infographic: http://info.newtonsoftware.com/compliant-ats-infographic-sdr

• OFCCP Audit: http://info.newtonsoftware.com/ofccp-audit-sales

• Applicant Flow Log Example: http://info.newtonsoftware.com/resources/applicant-flow-log

SCREENING:

• Free 30-Minute Review of your Background Check Policy: Email ComplianceReview@ebiinc.com

• The Step-by-Step Guide to Creating & Improving Your Background Check Policy [On Demand Webinar]:
https://www.ebiinc.com/resources/webinars/step-by-step-background-policy-webinar-download

• Screening News Network: https://www.ebiinc.com/screening-news-network

© 2017 EBI Recruiting & Hiring Compliance Confidence 33