United States: OFCCP Issues New Regulation Regarding Definition of Internet Job Applicants for Federal Contractors

The United States Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has issued a new regulation addressing "Internet applicants," which will go into effect on February 6, 2006. Many federal contractors process at least some employment applications through "electronic data entry" (e.g., on-line applications, internal resume databases). The new regulation will affect the way those federal contractors track, record, and identify applicants for affirmative action purposes.

OFCCP has long required federal contractors to obtain (where possible) and record gender, race and ethnicity data regarding applicants for employment. OFCCP has insisted that federal contractors collect this data in order to conduct adverse impact analyses, periodically review employment practices, and evaluate the effectiveness of its good faith outreach efforts. Additionally, federal contractors must report applicant information on Equal Opportunity Surveys.

Faced with these requirements, federal contractors have asked the question "who is an applicant?" OFCCP has historically relied on the language set forth in the Uniform Guidelines on Employee Selection Procedures (1979) that an applicant is "a person who has indicated an interest in being considered for hiring, promotion, or other employment opportunities." Federal contractors and OFCCP have differed over the interpretation of this broad concept and the practical realities of the workplace. The new regulation is an effort to address the issues arising from the large volume of resumes and applications employers encounter when searching commercial internet sites (e.g., Monster.com) or their own resume databases. The new regulation does not apply to traditional non-Internet applicants, unless the employer considers them with Internet applicants for a particular position.

The new regulation applies to positions for which the contractor accepts "expression of interest via the Internet and related technologies," such as by e-mail, commercial and internal resume databanks, and employer websites. To qualify as an "Internet applicant," an individual must meet four criteria:

1. the individual submits an expression of interest in employment through the Internet or related technologies;
2. the federal contractor considers the individual for a particular position;
3. the individual’s expression of interest indicates that he or she possesses the basic qualifications for the position;
4. at no point in the selection process, prior to receiving an offer of employment from the contractor, does the individual remove himself or herself from further consideration or otherwise indicate that he or she is no longer interested in employment in the position.

One of the most significant developments in the new regulation is the provision that federal contractors may narrow the field of potential candidates by establishing "basic qualifications" for Internet applicants. The federal contractor must either clearly identify to potential Internet applicants the basic qualifications of the position, or make and maintain a record of such basic qualifications before considering the application or resume. The basic qualifications must (1) be noncomparative features that do not require a comparison between job seekers; (2) objective (e.g., specific educational degree); and (3) relevant to the performance of the particular position and enable the federal contractor to accomplish business-related goals.

The new regulation also provides that a federal contractor may narrow the field of potential candidates by establishing protocols to determine whether it will consider an individual "for employment in a particular position." For example, a federal contractor may institute a protocol under which it will not consider an expression of interest if it is not submitted in accordance with standard procedures, or a federal contractor may establish a protocol not to accept or consider unsolicited resumes.

The regulation requires the federal contractor to identify "where possible, the gender, race, and ethnicity of each applicant or Internet applicant." Identification may be done through visual identification (e.g., at the interview) or through a self-identification form completed by the individual.

OFCCP has also established new recordkeeping requirements. The new recordkeeping requirements deal with issues related to, among other things, maintenance of employment records and searches of internal and external databases (e.g., date of search, substantive search criteria).

OFCCP’s new regulation stemmed from a broader proposed document on the subject issued by the Equal Employment Opportunity Commission, the Department of Justice’s Civil Rights Division, the Office of Personnel Management and OFCCP in early March 2004. The joint document, which is being coordinated under the overall direction of EEOC, has not been finalized and is "still under consideration."

Federal contractors should review their applicant policies and procedures in light of the new regulation. While the new regulation explicitly addresses only Internet applicants, contractors’ processes for non-Internet applicants could well be affected. Federal contractors should use this opportunity to review the applicant policies generally regardless of the form in which the application is submitted. By instituting appropriate procedures and protocols, federal contractors can more effectively manage their administrative and legal obligations concerning applicant tracking for affirmative action purposes.

The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.