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By Jennifer Schober Goodwin, Esq.
jsg@kclegal.com
(414)423-1330
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 (“EEOC”) proposed a similar definition of Internet applicant in 2004 which is expected to be finalized later this year.
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 related 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, prior to receiving an offer of employment from the contractor, “removes himself/herself from further consideration or otherwise indicates that he/she is no longer interested in the position.”
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 contractor considers both types of expressions for the same position. Internet-related technologies include electronic mail, resume databases, job banks, electronic scanning technology, applicant tracking systems, and applicant screeners.
2. Considers The Individual For Employment In A Particular Position
Considering the individual for employment in a particular position means that 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 not submitted according to criteria established by the employer; e.g., unsolicited resumes not submitted with respect to a particular position or resumes that do not indicate the particular position applied for. An employer is also allowed to reduce the number of resumes considered by random sampling or absolute numerical limits (“data management techniques”); e.g., the first 50 applicants, etc.
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.
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 a contractor’s telephone inquiries or e-mails asking about his/her interest in a job. A lack of continuing interest can also be based on a job seeker’s statements pertaining to his/her interest in the specific position, the location of work, or the salary requirements. The key is for employers to consistently apply their policies and procedures to all candidates; e.g., if your policy is to consider only those candidates seeking less than $50,000 as their desired income for a particular position, an exception should not be made for the “right individual.”
B. Solicitation of Demographic Information
If the individual meets the definition of Internet Applicant, employers must solicit information for reporting the race and gender for the applicant pool. The obligation to solicit demographic information from job applicants is not new; the Internet Applicant rule simply clarifies who the demographic information must be solicited from. By the new rule limiting the definition of Internet Applicant to only individuals meeting the above four factors, employers actually have to solicit fewer individuals for demographic information. This is especially true if employers take advantage of ways to limit the applicant pool - asking about salary requirements, using data management techniques, establishing standard application procedures, etc.
C. Recordkeeping Requirements
If an employer accepts any Internet based expressions of interest for a particular position, it must, in addition to any paper applications and resumes, keep those expressions of interest that the employer actually “considered” for a particular position. Employers also are to 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:
Internal resume databases - a record of each resume added to the database, a record of the date each resume was added to the database, the position for which each search of the database was made, and corresponding to each search, the substantive search criteria used and the date of the search.
External data bases – a record of the position for which each search of the database was made and, corresponding to each search, the substantive search criteria used, the date of the search, and the resumes only of those job seekers who met the basic qualifications for the particular position who are considered by the employer.
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 purely technical recordkeeping violation, provided that the contractor (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 consistent with OFCCP’s recordkeeping requirements that preexisted the Internet Applicant final rule.
Now is the time for contractors to develop and implement a procedure for compliance. Contractors should:
1. Establish the basic qualifications for a position in advance of advertising the position or conducting searches,
2. Make certain that job descriptions define basic qualifications,
3. Include questions on application forms regarding salary, position, and location requirements,
4. Establish and publish a deadline to apply for each position, and
5. Establish 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 your affirmative action plan for 2006, please contact Suzie Wearing at srw@kclegal.com or call (414)423-1330.
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