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Effective February 6, 2006, the Office of Federal Contract Compliance Programs (“OFCCP”) puts into effect its long-awaited final rule regarding (1) the definition of Internet Applicant, (2) solicitation of race, gender, and ethnicity of Internet Applicants, and (3) recordkeeping requirements for the Internet hiring process. While the OFCCP rule applies only to Federal contractors and subcontractors, the Equal Employment Opportunity Commission proposed a similar definition of Internet applicant in 2004 which is expected to be finalized later this year. Employers who are not federal contractors should also take this opportunity to review internal procedures for dealing with Internet applicants to ensure that those procedures comply with EEOC requirements.
A. Definition of Internet Applicant
Under the OFCCP’s new rule, an Internet Applicant is defined as an individual who satisfies the following four criteria:
1. The applicant submits an “expression of interest” in employment through the Internet or electronic data technologies;
2. The employer “considers the individual for employment in a particular position;”
3. The applicant’s expression of interest indicates the individual possesses the “basic qualifications” for the position; and
4. The applicant, at no point in the employer’s selection process, removes himself/herself from further consideration or otherwise indicates that he/she is no longer interested in the position.
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1. Expression of Interest
An expression of interest is defined as including Internet or related electronic data technologies as well as paper resumes and cover letters where the employer considers both types of expressions for the same position.
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2. Considers The Individual For Employment In A Particular Position
Considering the individual for employment in a particular position means the employer assesses the substantive information provided in the expression of interest with respect to any qualification involved with a particular position. An employer may establish a procedure where resumes are not considered if they are not submitted according to established criteria.
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3. Basic Qualifications
Basic qualifications are those the individual must possess that the employer advertised to potential applicants or established in advance. The qualifications must be (1) non-comparative; e.g., one year experience in a particular position, rather than the most experience out of the top five candidates; (2) objective; e.g., Bachelor’s degree in accounting, not technical degree from a good school; and (3) relevant to performance of the particular position.
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4. Removes Himself Or Herself From Further Consideration Or Otherwise Indicates That He Or She Is No Longer Interested In The Position
An employer may conclude a lack of interest based on the individual’s express statement or passive demonstration of disinterest. Passive disinterest includes declining an employer’s invitation for a job interview and repeatedly failing to respond to an employer’s telephone inquiries or e-mails asking about his/her interest in a job.
B. Solicitation of Demographic Information
If the individual meets the definition of Internet Applicant, contractors must solicit information for reporting the race and gender for the applicant pool. By the new rule limiting the definition of Internet Applicant to only individuals meeting the above four factors, contractors actually have to solicit fewer individuals for demographic information.
C. Recordkeeping Requirements
If an employer accepts any Internet based expressions of interest for a particular position, it must retain any that the contractor actually “considered” for a particular position. Employers must maintain records identifying job seekers contacted regarding their interest in a particular position. In addition, there are recordkeeping requirements for internal and external resume databases.
While the new rule takes effect February 6, 2006, the OFCCP states that, for a period of 90 days, it will not cite an employer for a technical recordkeeping violation, provided that the employer (1) demonstrates that it is taking reasonable steps to comply with the rule, including a projected date of compliance, and (2) collects and maintains data according to the established procedures that preexisted the Internet Applicant final rule.
Now is the time for contractors to develop and implement a procedure for compliance, including:
1. Establishing the basic qualifications for positions in advance of advertising the position or conducting searches,
2. Making certain that job descriptions define basic qualifications,
3. Including questions on application forms regarding salary, position, and location requirements,
4. Establishing and publishing a deadline to apply for each position, and
5. Establishing a protocol for accepting expressions of interest and the use of data management techniques.
Note to Government Contractors:
An employer will want to compare the OFCCP’s final rule with its current definition of “Internet Applicant” to determine what adjustments will need to be made to tracking and recordkeeping systems. If you would like guidance on this matter, or to inquire about having our AAP team help you prepare or finalize your affirmative action plan for 2006, please call (414)423-1330.
For more detailed information about the OFCCP's Internet Applicant Recordkeeping Rule, see the January 2006 Issue of the Month or contact educational services at (414)988-8400.
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