OFCCP Issues New Rules on Tracking Internet Applicants
Employers who are federal contractors and subcontractors are required to take affirmative action to ensure equal employment opportunity in their employment processes. As part of that process, government contractors are required to maintain detailed records regarding their hiring processes, including tracking applicants for employment. In March 2004 the Office of Federal Contract Compliance Programs (“OFCCP”), a federal agency which is part of the U.S. Department of Labor's Employment Standards Administration, issued a proposed rule regarding when individuals who apply for employment with government contractors using the Internet and/or “related electronic technologies” should be considered to be an “applicant” for a government contractor’s record keeping purposes.
After a period during which it solicited public comments on the proposed rules, the OFCCP issued final rules which were published in the October 7, 2005 Federal Register. The final rules, which will become effective on February 6, 2006, retain most of the same language as the March 2004 proposed rules. The OFCCP has, however, provided some clarification in the final rule to address concerns expressed by various organizations during the public comment period. We summarize some of the more significant issues below.
Under the final rule, 41 C.F.R. § 60-1.3, an "Internet Applicant" is defined as any individual who satisfies the following four criteria:
(i) The individual submits an expression of interest in employment through the Internet or related electronic data technologies;
(ii) The contractor considers the individual for employment in a particular position;
(iii) The individual’s expression of interest indicates the individual possesses the basic qualifications for the position; and,
(iv) The individual at no point in the contractor’s selection process prior to receiving an offer of employment from the contractor, removes himself or herself from further consideration or otherwise indicates that he or she is no longer interested in the position.
I. Definition of “Applicant” when Internet and Traditional Methods Are Used
The OFCCP received many comments regarding whether the definition of “Internet Applicant” would be applied to individuals who submit an expression of interest through a means other than the Internet or related electronic data technologies (e.g., hard copies received by mail). Therefore, through the examples provided in the final rule, the OFCCP has made it clear that when an employer considers expressions of interest through both on-line profiles and mailed hard-copy resumes, the definition of “Internet Applicant” will apply to both types of expressions of interest.
II. What It Means to “Consider” An Applicant
The final rule also provides a clearer explanation of what it means for an employer to “consider” an individual for an opening.
Under the final rule, to “consider” an applicant means that the employer “assesses the substantive information provided in the expression of interest with respect to any qualifications involved with a particular position.” This means that employers do not have to consider any and all expressions of interest they receive, regardless of the manner or nature of the expression of interest. The final rule explains that an employer “may establish a protocol under which it refrains from considering expressions of interest that are not submitted in accordance with standard procedures the contractor establishes. Likewise, a contractor may establish a protocol under which it refrains from considering expressions of interest, such as unsolicited resumes, that are not submitted with respect to a particular position.”
This means that it is the employer’s actual practice that determines whether it has “considered” an application, not just its stated policy. For example, if an employer’s stated policy is to accept expressions of interest only through its Web site, but its actual practice is to also review faxed resumes and scan those it is interested in into its database, the individuals who did not use the Web site will also be considered “applicants.”
3. Particular Position
Some commentators expressed concern that if an employer uses a site like Monster.com and finds over 20,000 resumes of individuals who satisfy the basic qualifications for a particular position, all 20,000 of these individuals could be considered applicants unless the definition was somehow limited to those individuals who express an interest in the particular position for which the employer is considering the individual.
The OFCCP addressed this concern by stating “[i]f there are a large number of expressions of interest, the contractor does not 'consider the individual for employment in a particular position' by using data management techniques that do not depend on assessment of qualifications, such as random sampling or absolute numerical limits to reduce the number of expressions of interest to be considered, provided that the sample is appropriate in terms of the pool of those submitting expressions of interest.”
Returning to the Monster.com example, the OFCCP explained that this means that an employer may reduce the record keeping burden by determining which of the 20,000 individuals from Monster.com to contact through random sampling or an absolute numerical technique. For example, an employer could use a spreadsheet or database software package to consider only a small subset of resumes drawn randomly from the 20,000 resumes. An employer could also use an absolute numerical limit, such as reviewing only a predesignated number of resumes, such as the first 100 resumes.
In addition, the OFCCP’s final rule uses the term “particular position,” rather than the term “particular open position.” The deletion of the word “open” was made to avoid confusion about whether the second criterion is met if an individual is considered for a position that may be open in the future, but is not currently open. Under the final rule, an individual is an applicant if the employer considers the individual for employment in a particular position, whether or not it is currently open.
4. Basic Qualifications
OFCCP has further explained what "basic qualifications" means in the final rule, requiring that “basic qualifications” be “noncomparative,” “objective,” and “relevant to the performance of the particular position and enabl[ing] the contractor to accomplish business-related goals.”
The final rule retains the proposed rule’s examples of what “non-comparative” means. For example: “a qualification of three years’ experience in a particular position is a noncomparative qualification; a qualification that an individual has one of the top five number of years’ experience among a pool of job seekers is a comparative qualification.”
The final rule also explains that a basic qualification is “objective” if “a third party, with the [employer’s] technical knowledge, would be able to evaluate whether the job seeker possesses the qualification without more information about the contractor's judgment.”
c) “Job Related”
The final rule also has eliminated the term “job related” and replaced it with the term “relevant to performance of the particular position and enabl[ing] the [employer] to accomplish business-related goals.”
5. Withdrawn Interest
The final rule explains that an employer may conclude that an individual is not an applicant if the person has removed himself or herself from the selection process or has otherwise indicated lack of interest in the position based on the individual's express statement or on the individual's passive demonstration of disinterest.
For example, if an individual declines an invitation for a job interview, he or she has removed himself or herself from the selection process and is not an applicant. If the individual declines a job offer, he or she has expressly shown disinterest in the job and is not an applicant. If an individual repeatedly fails to respond to telephone inquiries or e-mails asking about his or her interest in a job, the individual has passively shown disinterest in the job and is not an applicant.
Please see this Website for future articles on the application of these new regulations.
 “Related electronic technologies” include e-mail, employer websites, third party job or resume banks, and internal databases of job seekers.