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www.HELPWANTED: Who qualifies as an Internet Applicant?

The Office of Federal Contract Compliance Programs (OFCCP) recently announced that its final guidance on Internet applicants will apply to hiring decisions made by federal contractors on or after February 6, 2006. This is the first written standard defining “Internet applicant” in the context of enforcing the equal employment opportunity and affirmative action requirements for federal contractors under Executive Order 11246. Covered employers should note that the definition of Internet Applicant applies to any applicant who submits an “expression of interest” for a position where electronic data technologies are used to fill that particular position. In other words, if an employer uses electronic technologies in the recruiting process for a position, an applicant who submits a traditional expression of interest such as a paper resume is still considered an Internet Applicant. Conversely, if no electronic technologies are used in the recruiting process, the existing non-Internet rules for tracking applicants applies.

Under the rule, federal contractors must obtain information regarding gender, race and ethnicity on applicants and employees which, under the new rule, includes “Internet applicants.” Under the new rule, in order to be considered an Internet applicant, the person must: (i) submit an expression of interest in employment through the Internet or “related technology;”

(ii) be considered for a particular position; (iii) have the basic qualifications for the position as shown by the application or “expression of interest;” and (iv) not remove himself or herself from further consideration or indicate otherwise that there is no longer any interest in employment. The federal contractor must identify “where possible the gender, race and ethnicity of each applicant or Internet applicant… whichever is applicable to the particular position.”

The final rule also contains detailed recordkeeping requirements that apply regardless of whether the individual qualifies as an Internet Applicant. Contractors must, for example, retain all expressions of interest submitted via the Internet or related electronic technologies that were “considered” during the recruitment process. Contractors are also required to make detailed records of internal and external resume database searches.

The final rule contains additional guidance on a number of issues such as the definition of “basic qualifications” for a position, determining the point at which a contractor “considers” an applicant in the recruiting process and determining whether an individual has removed himself or herself from the recruiting process. Prudent employers should control the amount of applicant flow data by deciding what criteria will result in a candidate being “considered” for purposes of the new OFCCP rule. In addition, the rule provides that employers may reduce large numbers of basically qualified applicants by:

§ using neutral data management techniques, such as random sampling; and

§ establishing a procedure for considering expressions of interest, such as rejecting any expressions of interest not submitted in response to a solicitation for a particular position.

An employer taking advantage of the OFCCP’s guidance on these issues will reduce its recordkeeping and data collection obligations.

Contractors will have a 90-day grace period to revise any internal systems necessary to comply with the requirements of the new rule. If the contractor can show that it has taken reasonable steps to update its systems in order to comply with the rule, including having a projected date of compliance, and actually corrects and maintains records under the procedures that are consistent with recordkeeping requirements that preexisted the Internet applicant rule, the agency promised that a contractor would be cited for a “technical recordkeeping violation” under the new guidelines.

 Covered employers should become familiar with the new rule, revise existing hiring policies and train human resources employees on the new recordkeeping requirements. For additional help, please contact any of our Labor Team members.

  • Partner

    Phil is a partner and former co-chair of the Labor and Employment Department. He represents employers in defending against employment-related claims in both federal and state courts. He represents clients involving covenants not ...

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