The New OFCCP Internet Applicant Recordkeeping Rule

Purpose of the Rule Defines “Internet Applicant” – a job seeker applying for work through the Internet or related electronic data technologies from whom contractors must solicit demographic information Prescribes the records contractors must maintain about hiring done through use of the Internet or related electronic data technologies Explains the records OFCCP will require contractors to produce when evaluating whether a contractor has maintained information on adverse impact and conducted an impact analysis under the Uniform Guidelines on Employee Selection Procedures (UGESP)

Collection of Demographic Data Contractors are required to solicit race, ethnicity, and gender data from all individuals who are “applicants” for employment. The rule imposes no new obligation to solicit race, ethnicity, and gender data.

Collection of Demographic Data (cont’d) The rule does not mandate a specific time or point in the selection process that contractors must solicit this demographic information, so long as the information is solicited from all applicants. Nothing in the rule precludes a contractor from voluntarily collecting data from job seekers who are not applicants, as long as such information is used only for purposes of the contractor’s affirmative action and equal employment opportunity programs.

Definition of Internet Applicant Four criteria must be satisfied in order for a job seeker to be considered an “Internet Applicant”

Four Criteria Individual submits expression of interest through Internet or related electronic data technologies Contractor considers individual for employment in a particular position Individual’s expression of interest indicates basic qualifications for position Individual does not remove him/herself from consideration prior to job offer

1. Expression of Interest Job seeker submits an expression of interest in employment through the Internet or related electronic data technologies

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: email, resume databases, job banks, electronic scanning technology, applicant tracking systems/applicant service providers, and applicant screeners.

Expression of Interest (cont’d) An individual’s posting of a resume on a commercial resume database is generally sufficient to satisfy the “expression of interest” requirement. Note: an individual is not an “Internet Applicant” unless all four criteria are satisfied.

Expression of Interest (cont’d) Includes all expressions of interest, regardless of the means or manner in which made, if the contractor considers expressions of interest made through Internet or related electronic data technologies in the recruiting or selection processes for that particular position.

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.

What if the contractor does not use the Internet or consider any electronic submissions? For those positions for which the contractor does not use the Internet or related electronic data technologies, the traditional (paper) OFCCP record- keeping standards apply. I.e., contractors must solicit demographic information from job seekers who are applicants under the definition of “applicant” contained in UGESP Q&A 15.

2. Considers The 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.

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

Protocols Contractors may establish protocols under which they will refrain from considering expressions of interest where: Standard submission procedures are not followed Resumes are not submitted for a particular position Actual practice must consistently and uniformly follow the protocol.

Data Management If there are a large number of expressions of interest, a contractor may use data management techniques to reduce the number considered. For example: Random sampling Absolute numerical limits The 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.

3. Basic Qualifications The expression of interest must indicate that the individual possesses the basic qualifications for the position.

Basic Qualifications (cont’d) Advertised to potential applicants as necessary in order to be considered for the position; or If the position is not advertised, established in advance by making and maintaining a record prior to considering any expression of interest for that particular position (e.g., simple external database searching)

Noncomparative Objective Relevant Basic Qualifications (cont’d) Must also be: Noncomparative Objective Relevant

Non-comparative vs. Comparative Qualification Noncomparative qualification – e.g., three years experience Comparative qualification – e.g., top five most experienced candidates

Objective vs. Subjective Qualification Objective – e.g., a Bachelor’s degree in accounting Subjective – e.g., a business degree from a “good school”

Relevant Qualification Relevant to performance of the particular position and enables the contractor to accomplish business-related goals.

Basic Qualifications (cont’d) Contractor may search a database for all “basic qualifications” by searching for the qualifications serially or in combination. Contractor may search a database for some “basic qualifications” and screen for the remaining “basic qualifications” through other means (e.g., by e-mailing candidates). Contractor may search a database for some, but not all, of the basic qualifications and not screen further for the remainder of the qualifications. If so, the contractor must solicit demographic data for individuals meeting the “basic qualifications” actually used for screening job seekers, provided the other applicant criteria are met.

Example of Basic Qualification Search A contractor initially searches an external job database with 50,000 job seekers for 3 basic qualifications for a bi-lingual emergency room nursing supervisor job: a 4-year nursing degree, state certification as an RN, and fluency in English and Spanish. The initial screen for the first three basic qualifications narrows the pool to 10,000.

Example of Basic Qualification Search (cont’d) The contractor then adds a fourth, pre- established, basic qualification, 3 years of emergency room nursing experience, and narrows the pool to 1,000. Finally, the contractor adds a fifth, pre- established, basic qualification, 2 years of supervisory experience, which results in a pool of 75 job seekers. Under the rule, only the 75 job seekers meeting all five basic qualifications would be Internet Applicants, assuming the other three prongs of the “Internet Applicant” definition were met.

4. Continued Interest 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 consideration or otherwise indicates that he or she is no longer interested in the position.

Lack of Continuing Interest Express statement of disinterest Failure to respond to contractor’s inquiries Statements made in the expression of interest indicating: Incompatible salary requirements Incompatible preferences as to position or type of work Incompatible preferences as to location of work

Data Management If 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 sampling Absolute 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.

Record Retention The requirement to retain records regarding the hiring process is not a new obligation for contractors. The requirement to retain records applies more broadly than the requirement to solicit demographic information from “Internet Applicants.”

Retention of Expressions of Interest Contractors must keep any and all expressions of interest through the Internet or related electronic data technologies as to which the contractor considered the individual for a particular position, except for expressions of interest from external resume databases. For external resume databases, contractors must retain all expressions of interest considered for individuals who meet the basic qualifications for a particular position, even those of individuals who are not Internet Applicants.

Record Retention (cont’d) Internal Databases – contractor must maintain a record of: Each resume added to database Date each resume was added Position for which each search was made The substantive search criteria used in the search Date of the search

Record Retention (cont’d) External databases – contractor must maintain a Position for which each search was made Substantive search criteria used in each search Date of search Resumes of any job seekers who met the basic qualifications for the particular position who are considered by the contractor (even if they do not qualify as Internet Applicants)

Record Retention (cont’d) All tests and test results All interview notes Records identifying job seekers contacted regarding their interest in a particular position The race, gender, and ethnicity of each applicant or Internet Applicant, whichever is applicable

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.

Discrimination Analysis “OFCCP is proposing a definition of applicant for the limited purposes of OFCCP recordkeeping and data collection requirements pursuant to Executive Order 11246. 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

Enforcement OFCCP will rely on census and other labor market data to assess a contractor’s hiring practices for potential discrimination and will carefully review the basic qualifications themselves. OFCCP’s compliance evaluations will not be limited to an evaluation of those records produced by the contractor. OFCCP will look broadly at all aspects of a contractor’s compliance with its nondiscrimination obligations, including the possible adverse impact of screens for basic qualifications.

Effective Date February 6, 2006. The final rule becomes effective February 6, 2006. As part of their affirmative action programs (AAP), contractors are required to analyze personnel activity data to determine whether there are selection disparities. The new recordkeeping requirements (in 60-1.12) will apply to data on hiring decisions made on or after February 6, 2006. AAPs created before February 6, 2006 will not need to be amended.

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 60-1.12.  

For Additional Information Visit OFCCP’s website: http://www.dol.gov/esa/ofccp/ You can contact OFCCP through the public mailbox at: OFCCP-Public@dol.gov