Managing Evergreen Jobs to Meet Compliance Obligations and Limit Financial Liability

What Are Evergreen Jobs?

Evergreen jobs, also referred to as pipelines are high-volume, typically high-turnover jobs, which are perennially available (i.e. typically entry level types of positions). Some evergreen jobs are available daily at the same facility. But that is not always true. Some evergreen positions are filled several times a week.

The EEO Problem

Absent detailed recruiter and selection manager documentation, large dollar-value “failure to hire” OFCCP audits and lawsuits routinely erupt from coast to coast across all industries and sizes of employers.

Failure-to-hire cases have been 92 percent or more of OFCCP’s annual back pay collections in each of the last 30 years. The headlines come almost weekly. Yet, all of those headlines are entirely avoidable. All recruiters and selection managers must do is be trained in the art of documentation (recruitment compliance), and then they must do it:


Recruiters and selection managers need to document two things:

1)    The reason(s) the person expressing interest is “NOT an Applicant.”

NOTE: The law defines the term “Applicant” in strange, glorious & counterintuitive ways; and

2)    The “legitimate non-discriminatory reason(s)” your company rejected a true “Applicant”.

Companies most commonly record and store the needed documentation through their applicant tracking system (ATS), like iCIMS (preferably), or via their “applicant flow log”. It is highly preferable, too, to store any notes or e-mails within iCIMS in digital readable form (as the tool allows) for efficient and quick identification and retrieval at a later date, if need be. At point of decision, recruiters and/or selection managers select pre-established disposition codes to record and document the reason the candidate did not progress in the institution’s selection process.

How to Defeat Steering Claims

A subset problem of evergreen jobs very often is steering claims.

Steering refers to the practice in which selection personnel guide applicants towards or away from certain jobs based on their protected status (Black/White/Female, etc.).

Steering may take two forms:

1.    Guiding an applicant to or away from a job opportunity; and/or

2.    Failing to inform applicants of available jobs which meet their work expectations/interest (if it is the company’s practice to helpfully alert applicants to other jobs which may be of interest).

The problems are documenting to avoid steering claims. Here is how the documentation problem arises. Let’s say:

·       Applicant initially expresses interest in Production Job #102

·       Applicant, however, fills Mechanic Job #219, in fact

o   For which s/he never submitted an application/resume/on-line profile.

When a contractor either shunts an applicant, or allows an applicant to broaden his/her application to a second job title for which s/he did not apply, the law looks at this situation as four discrete and sequential events:

1)    An application;

2)    (a) an employer rejection (could be for many reasons: no opening available at that moment more qualified candidate hired), or (b) an employee withdrawal of interest (i.e., some resolution);

3)    An application (to the second job—even in the absence of a writing); and

4)     An offer or rejection, or withdrawal of interest (i.e., some resolution).

How to Document Your Dispositions

1)    Document all four transactions on your interested persons log (or Applicant Flow Log if you still call it that) or in your electronic applicant database; OR

2)    BEST PRACTICE: Build a practice to cause those expressing interest to complete a new application or Profile for each job – which then forces documentation in the way your ATS expects and is built to record data…opening by opening and resolution by resolution for each such opening for which you considered a candidate.

Absent documentation, few if any recruiters and/or selection managers will remember this transaction two years later during the OFCCP audit, and the record will look like this as to my example 2(b) (withdrawal of interest), above:

•       Application to Job 1

•       Rejection as to Job 1 (when actually candidate withdrew interest and became interested in Job 2: i.e., not even an Applicant for Job 1)

•       Steered to Job 2 (which might be lower paying and primarily filled by women or minorities: bad optics absent evidence of withdrawal of interest as to Job 1 and an expression of interest in Job 2)

CONCLUSION: Steering claims are another great way for OFCCP to take advantage of contractors with pure heart, but poor documentation habits. Steering claims are “dialing for dollars” for Plaintiffs lawyers and OFCCP.

What is the Bottom Line Message?

Train your recruiters and selection managers to properly disposition candidates for hire. Candee Chambers, the executive director of DirectEmployers famously coined the operative phrase several years ago “Compliance to Recruitment” (“CTR”) to signify the modern need to bolt together the recruiting and compliance staffs in large companies.


John C. Fox

Fox, Wang, & Morgan, P.C.

John C. Fox represents companies and tries cases in state and federal courts throughout the United States. Mr. Fox has extensive trial experience, having spent more than 300 days in trial. Mr. Fox was also lead trial counsel in the first of the four wage-hour class actions known to have been tried in California and was lead trial counsel in what are believed to have been the two largest disability law suits in the United States. He is an across-the-board employment lawyer representing management nationwide. Mr. Fox was also previously Executive Assistant to the Director of the Office of Federal Contract Compliance Programs (OFCCP), U.S. Department of Labor, where he was responsible for all enforcement and policy matters. Apart from drafting substantive employment discrimination regulations at OFCCP, Mr. Fox was responsible for OFCCP’s contacts with the Congress, other federal agencies and The White House.

Managing Evergreen Jobs to Meet Compliance Obligations and Limit Financial Liability

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August 14, 2017


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