Presentation on theme: "The New OFCCP Internet Applicant Recordkeeping Rule"— Presentation transcript:
1 The New OFCCP Internet Applicant Recordkeeping Rule
2 Purpose of the Rule Defines “Internet Applicant” – a job seeker applying for work through the Internet orrelated electronic data technologies from whomcontractors must solicit demographic informationPrescribes the records contractors must maintainabout hiring done through use of the Internet orrelated electronic data technologiesExplains the records OFCCP will requirecontractors to produce when evaluating whethera contractor has maintained information onadverse impact and conducted an impactanalysis under the Uniform Guidelines onEmployee Selection Procedures (UGESP)
3 Collection of Demographic Data Contractors are required to solicitrace, ethnicity, and gender data fromall individuals who are “applicants”for employment.The rule imposes no new obligationto solicit race, ethnicity, and genderdata.
4 Collection of Demographic Data (cont’d) The rule does not mandate a specific time orpoint in the selection process that contractorsmust solicit this demographic information, solong as the information is solicited from allapplicants.Nothing in the rule precludes a contractor fromvoluntarily collecting data from job seekers whoare not applicants, as long as such informationis used only for purposes of the contractor’saffirmative action and equal employmentopportunity programs.
5 Definition of Internet Applicant Four criteria must be satisfied in order for a job seeker to be considered an “Internet Applicant”
6 Four CriteriaIndividual submits expression of interest through Internet or related electronic data technologiesContractor considers individual for employment in a particular positionIndividual’s expression of interest indicates basic qualifications for positionIndividual does not remove him/herself from consideration prior to job offer
7 1. Expression of Interest Job seeker submits an expression of interest in employment through the Internet or related electronic data technologies
8 Internet Technologies While the rule does not specifically define the term “Internet or related electronic data technologies” because technology is rapidly evolving, the preamble refers to the following examples: , resume databases, job banks, electronic scanning technology, applicant tracking systems/applicant service providers, and applicant screeners.
9 Expression of Interest (cont’d) An individual’s posting of a resumeon a commercial resume databaseis generally sufficient to satisfy the“expression of interest” requirement.Note: an individual is not an“Internet Applicant” unless all fourcriteria are satisfied.
10 Expression of Interest (cont’d) Includes all expressions of interest,regardless of the means or manner inwhich made, if the contractor considersexpressions of interest made throughInternet or related electronic datatechnologies in the recruiting orselection processes for that particularposition.
11 What if the contractor considers both electronic & paper express-ions of interest? When a contractor considers expressions of interest via both the Internet or related technologies and paper applications, the “Internet Applicant” rule applies.
12 What if the contractor does not use the Internet or consider any electronic submissions? For those positions for which thecontractor does not use the Internetor related electronic data technologies,the traditional (paper) OFCCP record-keeping standards apply.I.e., contractors must solicit demographicinformation from job seekers who areapplicants under the definition of“applicant” contained in UGESP Q&A 15.
13 2. ConsidersThe contractor “considers the individual for employment in a particular position” means the contractor assesses the substantive information provided in the expression of interest with respect to any qualifications involved with a particular position.
14 Considers (cont’d)“Under this definition, ‘considers’ involves the assessment of the job seeker’s qualifications against any qualifications of a particular position, including a determination of whether a job seeker meets the basic qualifications for the position.”-- Preamble to Applicant Final Rule
15 Protocols Contractors may establish protocols under which they will refrain from consideringexpressions of interest where:Standard submission proceduresare not followedResumes are not submitted for aparticular positionActual practice must consistently and uniformly follow the protocol.
16 Data ManagementIf there are a large number of expressions of interest, a contractor may use data management techniques to reduce the number considered. For example:Random samplingAbsolute numerical limitsThe sample must be appropriate in terms of the pool of those submitting expressions of interest – i.e., does not produce a disparate impact and is facially neutral.
17 3. Basic QualificationsThe expression of interest must indicate that the individual possesses the basic qualifications for the position.
18 Basic Qualifications (cont’d) Advertised to potential applicantsas necessary in order to beconsidered for the position; orIf the position is not advertised,established in advance by makingand maintaining a record prior toconsidering any expression ofinterest for that particular position(e.g., simple external databasesearching)
19 Noncomparative Objective Relevant Basic Qualifications (cont’d) Must also be:NoncomparativeObjectiveRelevant
20 Non-comparative vs. Comparative Qualification Noncomparative qualification –e.g., three years experienceComparative qualification –e.g., top five most experiencedcandidates
21 Objective vs. Subjective Qualification Objective – e.g., a Bachelor’sdegree in accountingSubjective – e.g., a businessdegree from a “good school”
22 Relevant Qualification Relevant to performance of the particular position and enables the contractor to accomplish business-related goals.
23 Basic Qualifications (cont’d) Contractor may search a database for all “basicqualifications” by searching for the qualificationsserially or in combination.Contractor may search a database for some “basicqualifications” and screen for the remaining “basicqualifications” through other means (e.g., bying candidates).Contractor may search a database for some, but notall, of the basic qualifications and not screen further forthe remainder of the qualifications. If so, the contractormust solicit demographic data for individuals meetingthe “basic qualifications” actually used for screeningjob seekers, provided the other applicant criteria are met.
24 Example of Basic Qualification Search A contractor initially searches an externaljob database with 50,000 job seekers for3 basic qualifications for a bi-lingualemergency room nursing supervisor job:a 4-year nursing degree,state certification as an RN, andfluency in English and Spanish.The initial screen for the first threebasic qualifications narrows thepool to 10,000.
25 Example of Basic Qualification Search (cont’d)The contractor then adds a fourth, pre-established, basic qualification, 3 yearsof emergency room nursing experience,and narrows the pool to 1,000.Finally, the contractor adds a fifth, pre-established, basic qualification, 2 yearsof supervisory experience, which resultsin a pool of 75 job seekers.Under the rule, only the 75 job seekersmeeting all five basic qualifications wouldbe Internet Applicants, assuming theother three prongs of the “InternetApplicant” definition were met.
26 4. Continued InterestThe 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 consideration or otherwise indicates that he or she is no longer interested in the position.
27 Lack of Continuing Interest Express statement of disinterestFailure to respond to contractor’s inquiriesStatements made in the expression ofinterest indicating:Incompatible salary requirementsIncompatible preferences as toposition or type of workIncompatible preferences asto location of work
28 Data ManagementIf there are large numbers of job seekers meeting basic qualifications, data management techniques may be used to reduce the number of job seekers who must be contacted to discern interest in the position. For example:Random samplingAbsolute numerical units* Provided the sample is appropriate in terms of the pool of those meeting basic qualifications – i.e., does not produce a disparate impact and is facially neutral.
29 Record Retention The requirement to retain records regarding the hiring process is nota new obligation for contractors.The requirement to retain recordsapplies more broadly than therequirement to solicit demographicinformation from “InternetApplicants.”
30 Retention of Expressions of Interest Contractors must keep any and all expressionsof interest through the Internet or relatedelectronic data technologies as to which thecontractor considered the individual for aparticular position, except for expressions ofinterest from external resume databases.For external resume databases, contractorsmust retain all expressions of interest consideredfor individuals who meet the basic qualificationsfor a particular position, even those ofindividuals who are not Internet Applicants.
31 Record Retention (cont’d) Internal Databases – contractor must maintain a record of:Each resume added to databaseDate each resume was addedPosition for which each searchwas madeThe substantive search criteriaused in the searchDate of the search
32 Record Retention (cont’d) External databases – contractor must maintain aPosition for which each search was madeSubstantive search criteria used in each searchDate of searchResumes of any job seekers who met the basicqualifications for the particular position who areconsidered by the contractor (even if they donot qualify as Internet Applicants)
33 Record Retention (cont’d) All tests and test resultsAll interview notesRecords identifying job seekers contactedregarding their interest in a particular positionThe race, gender, and ethnicity of eachapplicant or Internet Applicant, whichever isapplicable
34 Recordkeeping on Impact When evaluating whether a contractor has maintained information on impact and conducted an adverse impact analysis under UGESP (41 CFR Part 60-3) with respect to Internet hiring procedures, OFCCP will require only those records relating to the analyses of the adverse impact of employee selection procedures on Internet Applicants, as defined in this rule, and analyses of tests used as employee selection procedures, regardless of whether the test takers were Internet Applicants.
35 Discrimination Analysis “OFCCP is proposing a definition of applicant for the limited purposes of OFCCP recordkeeping and data collection requirements pursuant to Executive Order Accordingly, OFCCP is not purporting to define who is an applicant for any purposes which would affect the substantive interests of any individual, such as for purposes of litigation of employment discrimination claims under any federal, state, or local anti-discrimination statute.”- Preamble to Applicant Final Rule
36 Enforcement OFCCP will rely on census and other labor market data to assess a contractor’s hiringpractices for potential discrimination andwill carefully review the basic qualificationsthemselves.OFCCP’s compliance evaluations will not belimited to an evaluation of those recordsproduced by the contractor. OFCCP will lookbroadly at all aspects of a contractor’scompliance with its nondiscriminationobligations, including the possible adverseimpact of screens for basic qualifications.
37 Effective Date February 6, 2006. The final rule becomes effectiveFebruary 6, 2006.As part of their affirmative action programs(AAP), contractors are required to analyzepersonnel activity data to determinewhether there are selection disparities.The new recordkeeping requirements(in ) will apply to data on hiringdecisions made on or after February 6,AAPs created before February 6,2006 will not need to be amended.
38 Effective Date Enforcement Under OFCCP’s enforcement discretion, for a period of 90 days following February 6, 2006, OFCCP will not cite a contractor for a purely technical recordkeeping violation for failure to comply with the final rule, provided that the contractor:(1) demonstrates that it is taking reasonable steps to update its systems to comply with the rule, including a projected date of compliance, and(2) collects and maintains records according to the established procedures consistent with OFCCP’s recordkeeping requirements that preexisted the Internet Applicant final rule, i.e., 41 CFR
39 For Additional Information Visit OFCCP’s website:You can contact OFCCP through the public mailbox at: