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On October 7, 2005, the Office of Federal Contract Compliance Programs (OFCCP) released its final rule regarding the definition of an Internet applicant. As mentioned in a November 2005 article by Dr. Michael Harris, the final rule presents four criteria for a job seeker to be considered an applicant, as follows:

1.The individual submits an expression of interest in employment through the Internet or related electronic data technologies.

2.The contractor considers the individual for employment in a particular position.

3.The individual’s expression of interest indicates the individual possesses the basic qualifications for the position.

4.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.

Based on the four criteria, contractors should develop their own definition of an applicant, which determines when they must solicit race and gender information — EEO data — for reporting the gender and racial makeup of the applicant pool. In addition, the final rule specifies recordkeeping requirements for employers using the Internet or related electronic data technologies for recruiting and hiring. Federal contractors must comply with the rule by February 6, 2006. Even though the final rule allows companies to restrict the size of their applicant pool through their definition of an Internet applicant, employers must carefully develop and implement policies and procedures which will support this definition, train recruiters on the new policies and procedures, and monitor adherence to the new policies and procedures. Companies that have allowed recruiters wide latitude in their day-to-day practices should develop standardized policies and procedures for using the Internet and related technologies for recruiting and hiring.

The following represent some recommended steps that employers can take to prepare for the February 6, 2006 deadline to comply with the final rule.

1. Identify which expressions of interest will be considered.

Although the final rule does not include the criteria that individuals must follow an employer’s policies and procedures for indicating an interest in employment, the final rule does allow employers to establish such practices regarding who will be considered. Employers who wish to restrict the size of the applicant pool may want to implement standard processes that limit the acceptable type of expression of interest and the acceptable method of submission. Some employers, for example, may decide that they will only accept a completed application form; others may accept resumes but only those that include three references; others may accept any type or form of resume. Employers may decide to restrict the method of submission to the company website; others may allow submission through email or faxes. However, recruiters must be consistent. Suppose an employer states that only expressions of interest submitted through the company’s website will be considered. If a recruiter later accepts a faxed resume, all faxed resumes would also be “considered.” The final rule’s recordkeeping requirements oblige employers to save all expressions of interest considered for a particular position.

2. Decide whether you will include basic qualifications in your definition.

Although employers consistently requested that the definition of an Internet applicant include a provision that applicants must meet minimum qualifications, employers should contemplate the time and effort required to incorporate basic qualifications into their definition. Establishing basic qualifications for all positions may be a monumental task for some employers. According to the final rule, basic qualifications must be advertised or established prior to recruiting for a particular position. Basic qualifications must be non-comparative, objective, and job-related. In addition, the final rule clearly states that tests are not basic qualifications. Given the OFCCP’s statements that it will evaluate the adverse impact of basic qualifications using external sources of data such as the census or legal precedent, employers should either take the steps required to establish non-comparative, objective, job-related basic qualifications for all positions or else exclude this criterion from their definition. Excluding this criterion from the definition simply requires the employer to collect and report EEO data on a larger applicant pool.

3. Decide whether you will use work preferences to identify those not interested in a position.

Individuals who withdraw from the recruiting and hiring process or otherwise indicate disinterest in further consideration for a position do not have to be reported as part of the applicant pool. The final rule indicates that an individual’s stated work preferences may be used to gauge interest in a position. For example, if a person’s salary, travel, or work location preferences do not match the position requirements, the employer may categorize this individual as not interested in the position and remove them from the applicant pool. However, recruiters must apply this criterion consistently. Suppose an employer states that an individual’s salary preferences will be compared to the position salary to identify those interested in the position. If a recruiter decides to bring in a person for an interview even though his/her salary preference exceeds the position salary, all individuals whose salary preferences do not meet the position salary must be included as applicants.

4. Establish policies and procedures around search behavior.

Based on the final rule, an employer considers a job seeker when it compares the job seeker’s qualifications to the position requirements. When recruiters search internal or external databases and identify potential applicants for a position as those who show up in the search results, they have considered everyone in the searched database. Among other items, all search criteria and the dates of searches must be saved, along with the position for which the search was conducted. The OFCCP could request information on searches conducted for any position to look for signs of disparate impact or treatment. If a recruiter uses different search terms at different times or with different resume databases to fill one specific position, the recruiter has treated job seekers for the same position differently. If this treatment places females or minorities at a disadvantage in the hiring process, the OFCCP may file a claim of disparate treatment against the employer. Search terms applied consistently to all job seekers for a particular position may still have a disparate impact on females or minorities. Using geographic searches or searches for specific education, such as science degrees, may result in a disproportionate number of minorities or females being excluded from further consideration. If the employer can not justify the use of the search terms as job related, the OFCCP may file a claim of disparate impact against an employer. Finally, initial searches to narrow the applicant pool should be based solely on basic qualifications. Recruiters will need to know the basic qualifications for each position and acceptable search terms to reflect these qualifications. They will also need training on how to ensure that the appropriate records are saved related to each search.

5. Make decisions about data management techniques.

The final rule acknowledges that a recruiter may conduct a search on basic qualifications and still end up with an unmanageable number of job seekers. In this case, employers may use data management techniques to further narrow the potential applicant pool. Data management techniques include race- and gender-neutral methods to identify a subset of job seekers that are unrelated to the assessment of job qualifications. Examples include sorting expressions of interest by submission date and picking the first fifty or using a random sampling technique to identify a subset of individuals. Decisions about which methods to use and when to use these methods should be established, and recruiters should receive appropriate training.

6. Monitor adherence to policies and procedures.

As mentioned, a recruiter’s actual practices may invalidate stated policies and procedures. Employers should establish some method to ensure that all policies and procedures are being followed. The recommended steps above represent only a few of all of the issues facing employers who want to comply with the OFCCP’s final rule on the definition of an Internet applicant. Given the myriad ways of using technology to recruit and hire for open positions, employers will need to carefully develop policies and procedures for using recruiting and hiring technology in a manner consistent with the final rule in order to maintain compliance with federal recordkeeping and reporting regulations.

Note: This article is provided for informational purposes only and is not intended to offer specific legal advice.



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