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Related article: How Does the OFCCP Define an Internet Applicant?

Next year will be the 10th anniversary of the Internet Applicant Rule – a recordkeeping rule used by Office of Federal Contract Compliance Programs (OFCCP) to determine what applicant records need to be maintained by federal contractors. Prior to this rule, federal contractors had to rely on the Uniform Guidelines on Employee Selection Procedures (UGESP) and its Questions and Answers to determine their record keeping obligations around applicant data. Back then the general rule was every individual who applied was considered an applicant. In 2000, the UGESP Agencies – OFCCP, EEOC, U.S. Department of Justice (DOJ), and the predecessor of the Office of Personnel Management (OPM) – were given the task of evaluating how the use of the Internet as a job search tool was impacting employers’ recordkeeping obligations with respect to applicants. They also evaluated the need for changes to the UGESP Questions and Answers. When no consensus was reached, OFCCP published a Notice of Proposed Rulemaking in 2004 to add the Definition of an Internet Applicant to its implementing regulations under Executive Order 11246. The Final Rule went into effect in 2006.

Under OFCCP’s Internet Applicant Rule, a job seeker must meet four criteria to be classified as an applicant for recordkeeping, reporting, and analysis by contractors:

  1. The job seeker has submitted an expression of interest in employment through the Internet or related electronic data technologies
  2. The employer considers the job seeker for employment in a particular open position
  3. The job seeker’s expression of interest indicates the individual possesses the advertised, non-comparative, objective and job-related basic qualifications for the position
  4. The job seeker at no point prior to an offer indicates he or she is no longer interested in employment in the position for which the employer has considered the individual

How Can You Make the Most Out of the Internet Applicant Rule?

With the current recruitment environment continuing to evolve, the question all contractors should be asking themselves is how they can make the most out of the Internet Applicant Rule. Let’s start with a break down of the criteria under the Rule, and how you should be applying it.

  • Begin with basic qualifications for the job

    Verify you are using the most recent and best listing of basic qualifications for the job you are posting. Since these may change over time, be sure the information is current. Keep in mind “basic qualifications” is a legal term of art and is not the same as minimum qualifications. For example, being a good communicator may be a minimum qualification but it cannot be a basic qualification under the Internet Applicant Rule because it cannot be objectively measured.

    Basic qualifications provide you with the objective criteria necessary to evaluate who may become an applicant. You may receive hundreds of expressions of interest from unqualified job seekers; therefore, you want to know who is qualified. If a job seeker does not have the basic qualifications, then they are not an applicant even if you review their resume. Do not report in your applicant data for affirmative action planning (AAP) analysis job seekers who do not meet the basic qualifications for the position you are trying to fill.

  • Consider the job seeker for the open position

    The next criteria is considering the job seeker for the open position. Consideration means substantively evaluating a job seeker’s qualifications, skills, experience, education, etc. If a job seeker possesses the basic qualifications, and you consider them, the job seeker becomes an applicant unless they remove themselves from consideration.

  • Removing an applicant from the applicant pool

    Another criteria addresses how an applicant may be removed from the applicant pool prior to a job offer. There are two types of withdrawal-active and passive withdrawal. When a job seeker indicates they are no longer interested, they actively withdraw from consideration. This could be as obvious as a verbal statement they took another job, or it could be by not returning repeated (at least two) emails or phone calls about the position. If a job seeker does not show up for the interview, that is also an active withdrawal.

    The second type of withdrawal is dependent on what the job seeker tells the employer about their interest in the job-it is a passive withdrawal. This information can be gleaned from the job seeker’s application, during telephone screens, or in-person interviews. For example, an employer can infer a job seeker is not interested in a job that requires 50% travel if the job seeker’s application states they will not travel. Likewise, if a job seeker states their desired salary is a minimum of $50,000, and the job pays only $30,000, then the employer may assume the job seeker is not interested in the position.

Data Management Techniques

Now that we have reviewed the criteria, let’s go to the beginning of the process to examine how the decisions you make prior to advertising or posting a job impact your recordkeeping obligations. One of the best gifts to contractors in the Internet Applicant Rule is the ability to use data management techniques to manage a large volume of responses. If you anticipate a large number of job seeker interest in a job you may set up criteria in advance of reviewing the job seeker information. For example, you may decide to randomly sample from the applications submitted. There will be some applications not reviewed, and those job seekers are not applicants. Those who are reviewed may or may not become applicants depending on whether they meet all of the criteria.

Another data management technique suggestion is setting absolute numerical limits. For example, you decide to take the first 25 applications submitted and review only those job seekers. The remaining job seekers are not applicants. Another example of numerical limits is to review every fifth application or review all applications that are submitted in the first three days after the posting. One word of caution about using data management techniques: the sampling technique must be objective and non-discriminatory, and it cannot be drawn in such a way as to produce disparate impact.

Establishing Protocols

There is one more key step to take before advertising or posting a job. You should establish protocols in advance that will determine if a job seeker is going to be considered. These are different from data management techniques or basic qualifications-they are usually more process oriented. For example, if a job seeker does not follow the application process they will not be considered. A common protocol for employers is the job seeker must complete the application. A job seeker who exits the online application process before completing the entire application will not be considered for the job opening regardless of their qualifications for the job. Protocols must be consistent and uniformly applied.

One important protocol to establish is how you will handle unsolicited resumes or job seekers who have not identified a job in which they are interested. Some contractors decide a job seeker must use their online application system to be considered an applicant. An alternative method must be available if a job seeker requires an accommodation to use the online system because of their disability. Likewise, a best practice is to require job seekers apply for a particular position or requisition. Only considering candidates who apply to the particular requisition minimizes the risk OFCCP will find you “steered” applicants to particular positions. Moreover, this reduces the likelihood the agency will argue applicant pools for a large number of jobs should be combined.

Assigning Disposition Codes

It is critical to have a way to distinguish applicants from job seekers. The most common method is to assign dispositions or disposition codes to job seekers and applicants. Dispositions will identify who should be included in the pool to be analyzed and who is omitted from the pool and the analysis. Dispositions should be specific and should focus on the reason the job seeker was not selected, such as: did not meet basic qualifications, did not complete application process, applied after the requisition closed, not considered-data management, or did not possess necessary certifications. Dispositions such as: not hired, not qualified, or rejected are not helpful in determining whether a job seeker is an applicant without further investigation. Good disposition codes also tell you the stage of your hiring process where each job seeker was removed from consideration, such as recruiter phone screen, resume review, or manager interview.

Why We Use the Definition of an Internet Applicant

I have discussed the “how” of using the Definition of an Internet Applicant, so now let’s take a look at the “why”. The adverse impact, or Impact Ratio Analysis (IRA), is the answer. Under UGESP and in the annual AAP analysis requirements, contractors must determine if their selection procedures have an adverse impact on protected groups in the pool. Further, if there is an impact in the total selection process, you must examine each step of the selection process to determine if there is adverse impact at a particular step. If there is an indication of adverse impact, then you must investigate to determine why and, if necessary, make changes or corrections to the particular step of your process that is causing the adverse impact.

There are two key ingredients used to perform the IRA:

  1. A pool of applicants
  2. Selections from the pool


A requisition-based system is the best way to determine the pool of applicants who were considered for each selection decision you make. Once a requisition is filled, then everyone tied to the requisition who also met the four criteria is part of the pool for analysis. There may be job seekers who are tied to the requisition but do not meet the four criteria-for example, a job seeker who does not have the basic qualifications. In this case, that job seeker is not part of the IRA because he or she did not meet the criteria to be considered an applicant. Contractors without requisitions can use other criteria for determining the pool of applicants including job title, date of application, date of hire, etc.

The Importance of Identifying Applicants

If I could leave you with one piece of advice it would be to ensure you understand and identify which job seekers become applicants in your organization. This is critical to your success in a compliance evaluation. To sum up this overview of the Internal Applicant Rule, it is critical to know OFCCP will review the data submitted for applicants and hires and run their own IRA. If the officer finds areas of concern, he or she will request more detailed information about the pool of applicants and the selection. You will be most confident when providing that detail if you already know the applicant pool contains only those who followed your hiring process and met the four criteria of the Internet Applicant Rule. Strategic use of the Internet Applicant Rule also results in smaller applicant pools, which minimizes the risk your selection decisions will be the focus of OFCCP’s attention.

To learn more about the Internet Applicant Rule, and how to ensure your company is meeting the requirements, please contact a Berkshire expert at 800.882.8904 or [email protected].

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Roselle Rogers
Vice President, Diversity, Equity, and Inclusion
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Roselle Rogers, SPHR, SHRM-SCP, is the Vice President for Diversity, Equity, and Inclusion at Circa with responsibility for leading its DEI strategy and thought leadership initiatives. She is a subject matter expert in HR and OFCCP Compliance, affirmative action, EEO, and diversity; and frequently speaks on these topics at various HR conferences and webinars, educating and keeping federal contractors abreast of trends and recent developments in OFCCP/AA/EEO compliance. Prior to this role, Rogers was responsible for the company’s HR, compliance, business operations, and sales support operations, contractual and legal affairs, corporate training, and strategic initiatives. She has more than 30 years of HR experience and is certified as a Senior Professional in Human Resources (SPHR) and SHRM - Senior Certified Professional (SHRM-SCP). She is a member of the Milwaukee and Chicago chapters of the Industry Liaison Group (ILG), a presenter on the Circa OFCCP webinar series, is the lead editor of the weekly Circa publication, The OFCCP Digest, and an in-house expert on the online forum Ask the Experts. She served as a Director on the Metro Milwaukee SHRM Board, chaired the Metro Milwaukee SHRM Certification Committee, and facilitated the SHRM SPHR/PHR Certification program. Roselle is a graduate of the University of the Philippines with a Bachelor’s degree in Economics and a Postgraduate Diploma in Human Resources Development from the Ateneo de Manila University. She currently volunteers her time as the Vice President/Secretary of the Milwaukee Industry Liaison Group and President-elect of the University of the Philippines Alumni Association of Wisconsin.

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