OFCCP Issues Final Rule Defining Internet Applicants
For Federal Contractors
Background
On October 7, 2005, the Office of Federal Contract
Compliance Programs ("OFCCP"), a division of the
United States Department of Labor, released a final
rule defining the term "Internet applicant" for
purposes of the recordkeeping requirements for
federal contractors under federal discrimination
law. 70 FR 58946 (Oct. 7, 2005). The OFCCP published
this rule pursuant to its power to administer and
enforce Executive Order 11246, which prohibits all
nonexempt contractors, who do at least $10,000 of
business with the federal government, from
discriminating in employment decisions on the basis
of race, color, religion, sex, or national origin.
The executive order also requires federal
contractors to take affirmative action to guarantee
that equal employment opportunities are available in
all aspect of the workplace.
To assist in enforcing the executive order, the
OFCCP requires federal contractors to obtain gender,
race, and ethnicity data on employees and, where
possible, on applicants. The OFCCP's new rule
attempts to clarify the considerable confusion that
has arisen over how recent technological advances
such as the Internet affect contractors'
recordkeeping obligations and whether individuals
who submit resumes via electronic means are
"applicants." The new rule became effective on
February 6, 2006.
The New Definition
Under the final rule, an individual who applies for
a job with a federal contractor is an "Internet
applicant" if he or she satisfies all of the
following criteria:
The individual submits an expression of interest in
employment through the Internet or related
electronic data technologies.
The company considers the individual for employment
in a particular position.
The individual's expression of interest indicates
that he or she meets the basic qualifications for
the position.
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.
"Consider"
The final rule states that a contractor "considers
an individual for employment in a particular
position" if the contractor evaluates the
individual's expression of interest (application or
resume) to determine if the individual is qualified
for the position. Thus, a contractor "considers" an
individual under the new rule anytime it looks over
an individual's resume for information relating to
the individual's qualifications for a job. The final
rule also states that, if the contractor considers
any expressions of interest made electronically, the
Internet applicant definition applies to all
expressions of interest for that particular position
regardless of their means of communication. For
example, if a contractor received 30 resumes by
email and 30 paper resumes by traditional mail, the
Internet applicant definition applies to all 60
expressions of interest.
Although the final rule defines "considers" very
broadly, there are several exceptions. The final
rule states that a contractor need not consider any
expression of interest that fails to comply with the
contractor's standard procedures for applying for a
position. For example, the rule states that if an
employer has a policy of considering resumes
submitted only through its website, then the
employer need not consider any resume sent by other
means. The employer's actual practice will determine
if this exception applies. Further, the contractor
must have an established application procedure
before it can claim this exception. The final rule
also states that contractors need not consider any
expression of interest that an individual submits
without reference to a specific position, such as
unsolicited resumes. Finally, the final rule states
that a contractor, faced with a large number of
expressions of interest, does not "consider" any
individual for employment by using data management
techniques such as of random sampling or absolute
numerical limits to reduce the number of expressions
of interest. For example, if a contractor received
20,000 resumes for a particular position, it could
limit the number of applicants by taking a random
selection of 50 resumes for consideration or by
considering only the first 100 resumes submitted.
However, each sample must be a fair representation
of the racial, gender, and ethnic characteristics of
the entire pool of expressions of interest.
"Basic Qualifications"
Under the final rule, the definition of the "basic
qualifications" of a position depends on whether the
contractor decides to seek applicants by advertising
a position publicly or by using alternative methods
of searching. Under the final rule, if the
contractor decides to advertise a position, the
"basic qualifications" for that position are the
qualifications stated in the advertisement that
individuals must possess before the contractor will
consider the individual for the position. However,
if the contractor decides to use alternative methods
of seeking applicants for consideration (such as
searching existing resume databases), "basic
qualifications" are those qualifications that the
contractor chooses to use to search for applicants
before the contractor considers any expressions of
interest for the position. In the latter situation,
the contractor must record the criteria used for the
search before actually conducting the search.
The final rule states that all basic qualifications
must meet three requirements, regardless of whether
the contractor advertises for the position. First,
basic qualifications must be non-comparative. For
example, the final rule states that a qualification
that an individual must have at least two years
experience would be non-comparative. A requirement
that an individual must have the most experience out
of all the applicants would be comparative. Second,
the final rule states that basic qualification must
be objective and not depend on the contractor's
subjective judgment. For example, the final rule
states that a requirement that an individual have an
accounting degree would be objective; but a
requirement that an individual have a degree from a
"good school" would not. Finally, basic
qualifications must be relevant to the performance
of the particular position and must enable the
contractor to accomplish business-related goals.
Recordkeeping Requirements
Under the final rule, contractors must retain all
expressions of interest that they actually consider.
Contractors must also retain all records identifying
the individuals that the contractor contacted
regarding interest in a particular position.
However, the recordkeeping requirements change
slightly when a contractor uses a resume database
(external or internal) to search for qualified
individuals for a position. Under the final rule, if
a contractor uses an external, third-party resume
database such as Monster.com, the contractor does
not have to retain every resume that the database
contains. The contractor must only record the
resumes of job seekers that the contractor
considered after determining that the job seekers
met the basic qualifications of the position. In
addition, the contractor must record the position
for which it made each search, the substantive
search criteria used in the search, and the date of
the search. Under the final rule, contractors must
maintain these records regardless of whether the
individuals qualify as "Internet applicants." The
recordkeeping requirement varies slightly if the
contractor uses it own internal resume database to
search for job seekers instead of an external
database. In this situation, the final rule states
that a contractor must maintain a record of each
resume added to the database as well as the date it
was added, the position for which the contractor
made the search, the date of the search, and the
substantive search criteria used in the search.
Under the final rule, the contractor must also
maintain these records regardless of whether the
individuals qualify as "Internet applicants."
Implications
The OFCCP's new rule will have far-reaching
implications for federal contractors. This article
intends only to give a brief summary of the rule.
Federal contractors should seek the advice of legal
counsel to determine the individual impact that this
new rule will have on their business.
