When is an Applicant an Applicant?
Cathy Fyock wrote the following response to this question. We felt it was succinct and to the point. Cathy was kind enough to give her permission to reprint the synopsis on this site. Information regarding Cathy Fyock can be found by contacting her web site, provided at the end of this article.
In a seminar on March 23, 2006 in Louisville, KY, Mickey Silberman, partner with Jackson Lewis LLP and legal counsel for the National Industry Liaison Group, clarified not only the regulations themselves, but more importantly, the implications for employers.
There are four requirements that determine whether an individual is indeed an applicant, and all four must be met in order to count this individual an applicant. Outlined here are each of these requirements, with implications for employers in terms of their selection procedures.
1. “The individual submits an expression of interest in employment through the Internet or related electronic data technologies.”
Implication: Employers may want to include some electronic response option for all open positions since this new definition will allow all the applicants to be counted in the same way (and this new way is more favorable to employers than in the past, which required employers to count all those who responded to be counted as applicants, even though they did not meet basic qualifications). This means candidates who are not “basically qualified” will not be counted as applicants. Adding an email address as a response option permits employers to use all four eligibility requirements outlined in the new regulations, which is more favorable to employers.
Implication: Individuals must express interest to the employer in a particular position in order to be a true applicant. Therefore, resumes generated by going to an on-line data base such as Monster would not be counted until specific resumes are culled through a search using the basic requirements of the job and those candidates have indicated mutual interest.
2. “The contractor considers the individual for employment in a particular position.”
Implication: This regulation is the same as the old regulation and specifies the employer use some sort of tool to screen candidates, whether manually reviewing qualifications or using electronic tools.
3. “The individual’s expression of interest indicates the individual possesses the basic qualifications for the position.”
Implication: Employers must use care in determining “basic qualifications” for the job, ensuring these are job-related, objective, and non- comparative (for example, not the top five candidates). Basic qualifications are substantive credentials established for the job, such as experience, education, certifications, and other objective credentials. Employers are obliged to list the basic requirements in any recruitment advertising and pre-determine these qualifications prior to the selection process. The OFCCP will closely examine an employer’s basic qualifications for those positions where there is adverse impact greater than two standard deviations.
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.”
Implication: You don’t have to count individuals as applicants if they:
reject an offer.
fail to respond to inquiries.
are unwilling to meet requirements of the job (e.g., shifts, overtime, travel).
indicate higher salary requirements than are afforded by this position.
Some employers are examining “front-loading” key screening questions early in the selection process, that is, before other credentials are “considered” by the employer. For example, if candidates are to supply a cover letter or complete a form indicating their minimum salary requirements and openness to various work elements such as travel and overtime, then candidates who are not open to the specifications of the job can be eliminated from being counted as an applicant.
Implication: Employers may establish their own procedures for selection and may differentiate procedures for different types of positions. However, employers must remain consistent in applying their own procedures within these job categories.
Implication: You may limit the number of candidates you review on a non-comparative basis as a data management technique. For example, you may look at blocks of candidates (say, the first 20 who apply, or the last 20 who apply). While the regulations don’t speak to the record-keeping requirements, it is recommended that employers keep a record of the technique used.
Employers who are federal contractors should review these new regulations with their corporate counsel for clarification on their own internal policies and procedures for employee selection.
Cathy Fyock, CSP, SPHR, is an employment strategist—helping organizations develop strategies to recruit and retain top talent in an aging and changing marketplace. For over 15 years she has combined her knowledge of work-force issues and her talents as a speaker to provide innovative and inspirational learning events. She has helped organizations attract top talent, reduce turnover, and improve productivity in a volatile labor market. web: http://cathyfyock.com
Additional information is found below.
The U.S. Equal Employment Opportunity Commission (See OFCCP Ruling below)
Proposed March 2004 - Not FINAL
Questions and Answers: Definition of "Job Applicant" for Internet and Related Electronic Technologies
1. Why is the EEOC, in conjunction with DOL, DOJ, and OPM, issuing this document?
There is a need for a federal explanation of employers' recordkeeping obligations for job applicants in light of increased reliance on the Internet for job searches. The magnitude of Internet applications increased exponentially during the late 1990s. Characterized by massive amounts of information transmitted rapidly between job seekers and employers, the new technologies encourage employers and job seekers to explore the labor market broadly and freely.
2. Why is this definition linked to the Uniform Guidelines on Employee Selection Procedures (UGESP)?
The definition of "applicant" under UGESP is key to several recordkeeping provisions. The 1979 definition of "applicant" is in Questions and Answers (Qs and As) issued under UGESP by the EEOC and its sister UGESP agencies: the Department of Labor (OFCCP), the Department of Justice, and the U.S. Office of Personnel Management. The definition is at Q and A 15, 44 Fed. Reg. 11,998 (March 2, 1979).
3. What does UGESP call for?
Under UGESP, employers "should maintain and have available for inspection records or other information which will disclose the impact which its tests and other selection procedures have upon employment opportunities of persons by identifiable race, sex, or ethnic group. . . ." 29 C.F.R. 1607.4A. When hiring, each covered entity should maintain and have available such information with respect to applicants. When promoting, each covered entity should maintain and have available such information with respect to candidates. If tests and selection procedures are shown to have a disparate impact, then UGESP sets forth different methods for determining whether the tests or selection procedures are valid and job-related. UGESP is at 29 C.F.R. Part 1607 (EEOC) and 41 C.F.R. Part 60-3 (OFCCP).
4. Does this document change the text of UGESP?
No. UGESP and the existing Qs and As 1 - 93 (issued in 1979 and 1980) are not changed. This document adds new Qs and As 94 - 98.
5. Does this document change Title VII or Executive Order 11246?
No. This document does not change Title VII or Executive Order 11246.
Under Title VII and Executive Order 11246, as amended, employers and their recruiters are responsible for ensuring that all aspects of their recruitment and selection processes are lawful. An employer's obligation to avoid unlawful practices attaches regardless of the definition of "applicant."
6. Does this document change how the definition of "applicant" is treated?
The existing definition of "applicant" continues to apply to traditional, hard-copy applications. This definition, which can be found at Q & A 15 of the 1979 Qs and As, states:
"The precise definition of the term 'applicant' depends upon the user's recruitment and selection procedures. The concept of an applicant is that of a person who has indicated an interest in being considered for hiring, promotion, or other employment opportunities. This interest might be expressed by completing an application form, or might be expressed orally, depending on the employer's practice."
The new document provides a definition for "applicant" in the context of the Internet and related electronic technologies only.
7. What do you mean by the "Internet and related electronic technologies"?
This includes, for example: e-mail; various web sites such as third party job or resume banks and employment web pages; electronic scanning technology; applicant tracking systems; and internal databases of job seekers.
8. What is the definition of "applicant" in the context of the Internet and related electronic technologies?
In order for an individual to be an applicant in the context of the Internet and related electronic data processing technologies, the following must have occurred:
- the employer has acted to fill a particular position;
- the individual has followed the employer's standard procedures for submitting applications; and
- the individual has indicated an interest in the particular position.
9. What if the employer uses both traditional and Internet and electronic recruitment and selection methods?
For those positions subject to traditional recruitment and selection techniques, the existing recordkeeping standards apply. For those positions subject to Internet/electronic recruitment and selection techniques, the new recordkeeping standards apply.
10. Do I need to validate all employment tests administered online or in person?
If an employment test has a disparate impact, then it must be validated under Title VII and UGESP, whether administered online or in person.
General Issues - OFCCP GUIDANCE - 2006
What is the purpose of the Internet Applicant final rule?
The Internet Applicant final rule, issued by the Office of Federal Contract Compliance Programs (OFCCP), addresses recordkeeping by Federal contractors and subcontractors about the Internet hiring process and the solicitation of race, gender, and ethnicity of "Internet Applicants." The rule is the product of a lengthy deliberative process, including public input, to develop a definition of "Internet Applicant" applicable in the Internet age (added to 41 CFR 60-1.3). The recordkeeping requirements of the rule (amending 41 CFR 60-1.12) will provide meaningful data that OFCCP will use to enhance its enforcement of the nondiscrimination laws.
When does this Internet Applicant rule become effective and when will Federal contractors have to begin complying with the rule's provisions?
The final rule becomes effective February 6, 2006, one-hundred twenty days after the date of publication in the Federal Register. A contractor's recordkeeping practices must comply with the new rule on that date. For example, by February 6, 2006 a contractor must solicit demographic information about Internet Applicants and retain the records required by the rule for hiring decisions made on or after that date. The rule does not apply retroactively to hiring decisions made before February 6, 2006.
What if a contractor is having difficulty updating its systems to comply with the requirements of the Internet Applicant Rule? Will the effective date of the rule be extended?
No, the effective date of the Internet Applicant Rule will not be extended. The Rule is effective on February 6, 2006 (see FAQ above). However, 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 Internet Applicant 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.
Will contractors need to amend their current affirmative action programs in response to the new Internet Applicant rule?
No. As part of their affirmative action programs (AAPs), contractors are required to analyze personnel activity data to determine whether there are selection disparities. The amendments to the recordkeeping requirements in section 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.
How does this Internet Applicant rule change existing rules?
The final rule:
- Defines "Internet Applicants," job seekers 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; and,
- Explains the records OFCCP will require contractors to produce when evaluating whether a contractor has maintained information on impact and conducted an adverse impact analysis under 41 CFR Part 60-3, the Uniform Guidelines on Employee Selection Procedures.
What is the definition of an "Internet Applicant" in the final rule?
An Internet Applicant is defined as an individual who satisfies the following four criteria:
- The individual submits an expression of interest in employment through the Internet or related electronic data technologies;
- The contractor considers the individual for employment in a particular position;
- The individual's expression of interest indicates the individual possesses the basic qualifications for the position; and,
- 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.
What standard applies to the solicitation of demographic information if a contractor considers both electronic and traditional paper expressions of interest for the same position?
When a contractor considers expressions of interest for a position via both the Internet or related electronic data technologies and paper applications, the Internet Applicant standard applies to the solicitation of demographic information from all applicants for that position.
What standard applies to the solicitation of demographic information from job applicants if a contractor does not consider electronic expressions of interest for a position?
For those positions for which the contractor does not consider any electronic submissions, i.e., does not use the Internet or related electronic data technologies, the traditional OFCCP recordkeeping standards apply. That is, contractors must solicit demographic information from job seekers who are "applicants" under the definition of applicant contained in Question and Answer 15 of the Adoption of Questions and Answers to Clarify and Provide Common Interpretation of the Uniform Guidelines on Employee Selection Procedures:
15. Q. What is meant by the terms "applicant" and "candidate" as they are used in the Uniform Guidelines?
A. The precise definition of the term "applicant" depends upon the user's recruitment and selection procedures. The concept of an applicant is that of a person who has indicated an interest in being considered for hiring, promotion, or other employment opportunities. This interest might be expressed by completing an application form, or might be expressed orally, depending upon the employer's practice.
The term "candidate" has been included to cover those situations where the initial step by the user involves consideration of current employees for promotion, or training, or other employment opportunities, without inviting applications. The procedure by which persons are identified as candidates is itself a selection procedure under the Guidelines.
A person who voluntarily withdraws formally or informally at any stage of the selection process is no longer an applicant or candidate for purposes of computing adverse impact. Employment standards imposed by the user which discourage disproportionately applicants of a race, sex or ethnic group may, however, require justification. Records should be kept for persons who were applicants or candidates at any stage of the process.
If a contractor uses the Internet to advertise a position but requires all individuals to complete a paper application form, will the individuals that apply be considered Internet Applicants?
No. It is not the method of advertising a job that determines the applicability of the Internet Applicant rule. Rather, the determining factor is whether the expression of interest in employment was made through the Internet or related electronic data technologies.
Do the regulations apply to the job title or to the contractor? Specifically, if the contractor uses the Internet Applicant rule for some positions (e.g., professional and technical), but not for others (e.g., entry level blue collar and clerical), are all of the expressions of interest received by the contractor covered by the Internet Applicant rule, or only those relevant to a particular position where the Internet or other electronic technology was used?
The regulations' definition of "Internet Applicant" applies on a position-by-position basis. The new rule applies only to those positions for which the contractor uses the Internet or related electronic technologies.
Does the contractor need to explain which applicant definition they are using?
A contractor would have to explain whether it employed the Internet Applicant definition as part of a compliance evaluation or complaint investigation.
How will OFCCP decide which desk audit submissions to accept at face value and which to examine in depth in order to ensure that the proper race/gender/ethnicity information is included?
The Internet Applicant rule emphasizes that OFCCP will compare the proportion of women and minorities in the contractor's Internet Applicant pool with labor force statistics or other data on the percentage of women and minorities in the relevant labor force in order to evaluate the impact of basic qualifications. If there is a significant difference between these figures, OFCCP will investigate further as to whether the contractor's recruitment and hiring practices conform with E.O. 11246 standards.
How will OFCCP coordinate review of the Internet Applicant issue across regions, especially when the same contractor is being evaluated and record keeping practices are a product of the contractor's national policy?
Training for the application of the Internet Applicant rule will be provided to field staff to ensure consistency. Additionally, current OFCCP procedures call for Compliance Officers to utilize the Case Management System to identify issues that may extend beyond a particular evaluation and to bring potential nationwide/corporate-wide systemic issues to the Regional Office.
What does the term "Internet or related electronic data technologies" refer to?
While OFCCP will not provide a precise definition of the term "Internet or related electronic data technologies" in recognition of rapid changes in technology in this area, OFCCP does intend this term to include the types of technologies referenced in the preamble to the proposed UGESP Additional Questions and Answers. Those six types of Internet-related technologies and applications that are widely used in recruitment and selection today include:
- Electronic mail/email
- Resume databases
- Job banks
- Electronic scanning technology
- Applicant tracking systems/Applicant service providers
- Applicant screeners
Would the submission of resumes via a fax be considered as expressing an interest under the Internet Applicant rule?
Since fax machines transmit documents by digitized signals - and today can send to an email account and print out faxes sent by an email account - transmission of a resume by fax constitutes transmission by "related electronic data technologies."
Would an individual using Voice over Internet Protocol (VOIP) or a company that uses VOIP rather than traditional telephones to make or receive job inquiries or "expression of interests" be considered as using the "Internet or related electronic data technologies" for inclusion under the Internet Applicant rule
Wikipedia, an online Internet encyclopedia, describes Voice over Internet Protocol (also called VOIP, IP Telephony, Internet telephony, and Broadband Phone) as the routing of voice conversations over the Internet or any other IP-based network. The voice data flows over a general-purpose packet-switched network, instead of traditional dedicated, circuit-switched telephony transmission lines.
While OFCCP does not provide a precise definition of the term "Internet or related electronic data technologies" in recognition of rapid changes in technology in this area, OFCCP does intend this term to include the types of technologies referenced in the preamble to the Internet Applicant final rule. Those six types of Internet-related technologies and applications that were discussed in the preamble are:
- Electronic mail/email
- Resume databases
- Job banks
- Electronic scanning technology
- Applicant tracking systems/Applicant service providers
- Applicant screeners
All of these technologies permit the electronic submission or management of a high volume of expression of interest written data.
We have also posted a related question, immediately above, regarding the use of faxed documents which concludes that transmission of a resume by fax constitutes transmission by "related electronic data technologies." Fax technology permits the electronic submission of a high volume of written expressions of interest.
While VOIP may use the Internet, VOIP functions to transmit individual voice communications akin to a telephone rather than a high volume of written expressions of interest data like the six examples contained in the preamble. Accordingly, OFCCP would not consider VOIP an Internet or related data technology under the Internet Applicant rule.
What is the definition of basic qualifications?
The "basic qualifications" which an applicant must possess means qualifications that the contractor advertised to potential applicants or criteria which the contractor established in advance. In addition, the qualifications must be:
- Noncomparative features of a job seeker (e.g. three years' experience in a particular position, rather than a comparative requirements such as being one of the top five among the candidates in years of experience);
- Objective (e.g., a Bachelor's degree in accounting, but not a technical degree from a good school); and
- Relevant to performance of the particular position.
How would this work in practice?
Here is an example of how this would work: 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. 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 Internet Applicant 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.
Are employment tests considered basic qualifications?
No. Employment tests used as employee selection procedures, including on-line tests, are not considered basic qualifications under the Internet Applicant rule. Contractors are required to retain records about the gender, race, and ethnicity of individuals who take a test used to screen them for employment, regardless of whether the test takers are "Internet Applicants."
How will OFCCP ensure that contractors do not use basic qualifications to discriminate?
Contractors will not be able to use basic qualifications in order to discriminate because:
- The rule requires a contractor to retain, for possible review, the expressions of interest it considered, even those of individuals who are not Internet Applicants, for possible OFCCP review.
- A contractor must similarly retain records of all the basic qualifications used to develop a pool of Internet Applicants.
- OFCCP will rely on Census and other labor market data to assess contractors' hiring practices for potential discrimination and will carefully review the basic qualifications.
- OFCCP's compliance evaluations will not be limited to an evaluation of those records produced by the contractor. During compliance evaluations OFCCP will continue to look broadly at all aspects of a contractor's compliance with its obligations to refrain from discrimination in recruitment, hiring, and other employment practices, including the possible adverse impact of screens for basic qualifications.
Can the basic qualifications be modified during the selection process, or do they need to be set prior to the beginning of the process?
All basic qualifications must be established prior to the selection process. Basic qualifications are the qualifications advertised to potential applicants as being required in order to be considered for the position. If the contractor does not advertise for the position but, for example, searches an external resume database, the contractor must make and maintain a record of basic qualifications to be used in the search prior to considering any expression of interest for that particular position.
What if after establishing the basic qualifications for a position, more applications were received than expected. How can the pool of applications to be considered be narrowed to a manageable size?
If a large number of individuals meeting the basic qualifications apply, the contractor has three options. First, the contractor may use data management techniques to limit the number who must be contacted to determine their interest in the position, assuming the sample is appropriate in terms of the pool of those meeting the basic qualifications. Second, the contractor could screen expressions of interest to determine whether some job seekers have removed themselves from consideration based on information the individual has provided in his or her expression of interest, such as salary requirements or preferences as to type or location of work, provided that the contractor has a uniformly and consistently applied policy or procedure of not considering similarly situated job seekers. Finally, the contractor may screen the pool of job seekers possessing basic qualifications for additional preferred qualifications to narrow the pool of those to be further considered. However, demographic information must be solicited from all job seekers meeting the basic qualifications originally established prior to qualification screening, assuming they meet other elements of the Internet Applicant definition.
What if after establishing the basic qualifications for a position, fewer applications were received than expected. How can the pool of expressions of interest be broadened? Can the contractor go back and make exceptions to basic qualifications?
Contractors may search for basic qualifications serially or in combination. They may search a database for some, but not all, of the basic qualifications and not screen further for the remainder of the basic qualifications. If so, the contractor must solicit demographic data for individuals meeting the subset of "basic qualifications" actually used for screening job seekers, provided the other Internet Applicant criteria are met. A contractor cannot make exceptions to basic qualifications on a case-by-case basis without soliciting demographic information from all job seekers meeting the basic qualifications actually required for anyone to be considered further for the position.
How will OFCCP determine whether a complex, technical qualification standard is objective?
A basic qualification is objective if a third-party, with the contractor's technical knowledge, would be able to evaluate whether the job seeker possesses the qualification without more information about the contractor's judgment.
Can the contractor exclude from further consideration any individual who does not fulfill the basic qualifications summary of skills required in the contractor's advertised job description?
Yes, if the basic qualifications meet the requirements under the Internet Applicant rule and the basic qualifications have been uniformly and consistently applied to all other similarly situated individuals.
Can the contractor screen for basic qualifications through questions in the on-line application?
Yes, provided that the contractor has a uniformly and consistently applied policy or procedure of not considering similarly situated job seekers based on their responses to the questions and the questions are consistent with screening for "basic qualifications." Note that if a question had an adverse impact on minorities or women, the contractor would have the obligation to show that the question is job related and consistent with business necessity.
Can contractors utilize an employment test (such as a personality, knowledge or physical capability test) as part of the online application process?
Nothing in the Internet Applicant rule would prohibit the practice. However, employment tests used as employee selection procedures, including on-line tests, are not considered basic qualifications under the Internet Applicant rule and contractors are required to retain records about the gender, race and ethnicity of the individuals who take a test used to screen them for employment, and other records made or kept about the test, regardless of whether the test takers are Internet Applicants under section 60-1.3.
Can contractors use different basic qualifications for the same job title?
As used in the Internet Applicant rule, the basic qualifications are those qualifications associated with the position filled. Nothing in the final rule would prohibit a contractor from utilizing different basic qualifications for different positions with the same job title, keeping in mind that the basic qualifications must be advertised or established in advance, and must be noncomparative, objective, and relevant to the particular position.
What happens if contractors use search criteria beyond the basic qualifications?
The final rule does not prohibit the use of additional search criteria in making a selection decision. However, an individual is an Internet Applicant if he or she meets all of the pre-established basic qualifications plus the other three prongs of the definition. The contractor could be found in violation of Executive Order 11246 if it failed to maintain required records, such as the resume from an external resume database of each individual that met the basic qualifications or to collect the required demographic data on all individuals who met the four "Internet Applicant" criteria (i.e., those who met the "basic qualifications," even if additional screening was done based on additional qualifications).
What do contractors do with searches for basic qualifications of an external resume database that produce false positives? For example if a search was made of an external database for a computer programmer with JAVA experience, the search results may include people with coffee shop java experience. Is the contractor obligated to retain all resumes produced by the JAVA search?
No. Only those individuals with computer programmer JAVA experience would meet the basic qualification. Those with only coffee house java experience would not possess the basic qualifications. Accordingly, the company would not be required to retain the resumes of those with only coffee shop experience.
Consideration of Job Seekers
What is the definition of "considers the individual for employment in a particular position," for purposes of the definition of "Internet Applicant"?
The definition of "considers the individual for employment in a particular position" for purposes of paragraph 60-1.3 (1)(ii) of this definition means that the contractor assesses the substantive information provided in the expression of interest with respect to any qualifications involved with a particular position.
A contractor may establish a protocol under which it refrains from considering expressions of interest that are not submitted in accordance with standard procedures the contractor establishes.
Likewise, a contractor may establish a protocol under which it refrains from considering expressions of interest, such as unsolicited resumes, that are not submitted with respect to a particular position. If there are a large number of expressions of interest, the contractor does not "consider the individual for employment in a particular position" by using data management techniques that do not depend on assessment of qualifications, such as random sampling or absolute numerical limits, to reduce the number of expressions of interest to be considered, provided that the sample is appropriate in terms of the pool of those submitting expressions of interest.
Is a contractor required to consider for employment every job seeker who expresses an interest in employment through the Internet and possesses the basic qualifications for a particular position?
No. OFCCP does not provide a blanket requirement that contractors must consider any and all expressions of interest they receive, regardless of the manner or nature of the expression of interest - even if the job seeker possesses the basic qualifications. If the contractor has established standard procedures that job seekers must follow in order to express an interest in employment, the contractor does not have to consider those individuals who do not follow those procedures. Similarly, the contractor does not have to consider for employment individuals who do not specify a particular position, so long as that is the contractor's consistent practice. Additionally, if there are a large number of expressions of interest, the contractor may limit the number of individuals it considers by using random sampling, absolute numerical ceilings, or other data management techniques, provided the sampling procedure is appropriate.
Does a contractor "consider" an individual merely by running a (basic qualifications) search that brings up the individual's resume, if the contractor never opens the resume?
If the contractor does not open the resume as a result of appropriate data management techniques that limit the number of resume "hits" that are reviewed, then the contractor has not "considered" that individual.
Can a company use a BOT to search an external database to fill a position? [A BOT (short for "robot") is a program that operates as an agent for a user or another program or simulates a human activity. On the Internet, the most ubiquitous bots are the programs, also called spiders or crawlers, that access Web sites and gather their content for search engine indexes].
Yes. BOT searches of external resume databases are treated the same as other methods for searching external resume databases. The BOT may be used to search for basic qualifications for the position without retaining a copy of all resumes reviewed. If the BOT searches beyond the basic qualifications, the company could be found in violation of the Executive Order if it failed to maintain the resumes of each individual that met the basic qualifications. Other records required to be maintained regarding searches of external resume databases also must be maintained for BOT searches of such databases.
Is there an obligation to keep a record of the data management technique used? Specifically, must records be maintained about the criteria of random sampling used or the manner by which a numeric limit was determined?
While there is no express requirement for the contractor to document the techniques employed, contractors must retain records they create memorializing or implementing data management techniques under OFCCP's general record retention requirement to retain any employment or personnel record made by the contractor, including records pertaining to hiring. 41 CFR 60-1.12(a). Failure to do so may weaken the company's ability to defend its practices.
Is there a minimum number of expressions of interest that must be considered when a data management technique is used to limit the number of expressions of interest?
No. OFCCP will allow the contractor to determine the number of expressions of interest that are considered for each specific position as long as the pool is appropriate in terms of those submitting expressions of interest for that position, that is, the data management techniques are facially neutral and do not produce disparate impact based on race, gender, or ethnicity in the expressions of interest considered. OFCCP will consider labor force statistics in evaluating whether the pool of expressions of interest to be considered produces disparate impact.
How will OFCCP determine whether data management techniques used to reduce the pool of expressions of interest to be considered have a disparate impact, if the race/gender/ethnicity composition of the pool that is reduced using these techniques is not known?
OFCCP will consider labor force statistics in evaluating whether the pool of expressions of interest to be considered produces disparate impact, comparing the representation of gender, race and ethnic groups in the pool selected for consideration with the representation of those groups in the relevant labor market. If the difference in representation rates is sufficiently great, OFCCP may investigate further to determine the cause of the disparities. Part of the reason that OFCCP requires contractors to maintain records of individuals that express an interest in employment, even if they do not qualify as Internet Applicants, is to allow OFCCP to verify that basic qualifications were uniformly and consistently applied to job seekers. OFCCP also may use the expressions of interest to verify that data management techniques were applied in a neutral fashion.
Can random sampling ever be viewed as a "criterion" for employment, facially neutral or otherwise?
Random sampling is not a basic qualification.
Can contractors use data management techniques as part of the database search to limit the number of resumes to be considered?
Yes, data management techniques can be applied to limit the number of people being considered for a position. However, the techniques must be applied before giving individuals consideration, must not depend on assessment of qualifications, must be representative of the total pool, and must not have an adverse impact.
Withdrawal from Consideration
How can a contractor determine that an individual has indicated that he or she is no longer interested in the position?
The Internet Applicant rule explains that a contractor may conclude that an individual has removed himself or herself from the selection process or has otherwise indicated lack of interest in the position based on the individual's express statement or on the individual's passive demonstration of disinterest. For example, passive disinterest may be shown by:
- Declining a contractor's invitation for a job interview;
- Declining a job offer; or
- Repeatedly failing to respond to a contractor's telephone inquiries or emails asking about his or her interest in a job.
A contractor may also presume a lack of continuing interest based on a review of the job seeker's expression of interest. For example, statements pertaining to (1) the individual's interest in the specific position or type of position at issue, (2) the location of work, or (3) his or her salary requirements, may provide the basis for determining the individual is no longer interested in the position, provided that the contractor has a uniformly and consistently applied policy or procedure of not considering similarly situated job seekers.
What records must be retained about Internet Applicants who withdraw from consideration?
Expressions of interest considered must be retained from those who qualify as Internet Applicants, even if the Internet Applicant later withdraws from consideration. Other required records must be kept as well, including any statement of withdrawal, demographic data previously solicited from the individual and test results. However, the contractor is not obligated to solicit demographic data from the individual if it has not already done so.
What type of documentation will be necessary to verify the applicant withdrew from consideration?
The specific documentation necessary will be case specific. The Internet Applicant rule does not change what OFCCP would consider acceptable documentation under established applicant hiring analyses.
Is a telephone screen a reasonable step to determine if the individual is interested in the location, salary, or hours of the specific position before defining the individual as an Internet Applicant?
The Internet Applicant rule does not specify how or when in the selection process a contractor may screen for a job seeker's interest in the specific position, keeping in mind that the interest screens should be facially neutral and consistently and uniformly applied to similarly situated job seekers. Note that the Internet Applicant rule requires maintenance of records identifying job seekers contacted regarding their interest in a particular position.
Can the employer exclude an individual from further consideration if the individual declines to complete the employer's on-line employment application completely as instructed?
Yes, provided that the contractor has a uniformly and consistently applied policy or procedure of not considering similarly situated job seekers.
If a job fair recruiter suggests that a job seeker apply for a position through a specific requisition, and the job seeker fails to do so, is the job seeker an applicant or an Internet Applicant?
No, provided that the contractor has a uniformly and consistently applied policy or procedure of not considering similarly situated job seekers. Note that discrimination in recruitment also is prohibited by the Executive Order. It would be discrimination for a recruiter to treat job fair job seekers differently based on race, gender or ethnicity in terms of providing specific requisition information.
Must a contractor maintain expressions of interest in employment made through the Internet that do not meet the other three criteria contained in the definition of "Internet Applicant"?
No. Under section 60-1.12(a), contractors avoid this burden even if there are large numbers of expressions of interest, because contractors are not required to retain records regarding individuals who were never considered for a particular position. The rule generally requires a contractor to retain all the expressions of interest it considered, even those of individuals who are not Internet Applicants. However, when a contractor searches an external database, it is required to maintain only copies of resumes of those job seekers who met the basic qualifications for the position and who are considered by the contractor. Further, a contractor must retain records of all the basic qualifications used to develop a pool of Internet Applicants.
What records must be maintained from internal and external resume databases?
The Internet Applicant rule requires contractors to maintain 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 searches of external resume data bases discussed below. Contractors also are to maintain records identifying job seekers contacted regarding their interest in a particular position. In addition, for internal resume databases, the contractor must maintain a record of each resume added to the database, a record of the date each resume was added to the database, the position for which each search of the database was made, and corresponding to each search, the substantive search criteria used and the date of the search. Also, for external resume databases, the contractor must maintain a record of the position for which each search of the database was made, and corresponding to each search, the substantive search criteria used, the date of the search, and the resumes of any job seekers who met the basic qualifications for the particular position who are considered by the contractor. These records must be maintained regardless of whether the individual qualifies as an "Internet Applicant" under 60-1.3. Note that the final rule does not specify the form of the record. The format can be as detailed as a system that automatically stores each search or as basic as a simple screen shot printed out and maintained in a file cabinet.
Are contractors required to keep the resumes of the individuals identified from a database search if they did not consider them?
For searches of external databases, the answer is no. The only records a contractor would be required to maintain would be associated with the search itself. For internal databases, contractors are required to keep records of all individuals added to the databases. A resume downloaded from an external resume database into an internal resume database becomes an internal database resume.
Is there a new requirement under the Internet Applicant rule that the contractor must be able to identify, where possible, the gender, race, and ethnicity of each Internet Applicant?
The obligation to solicit demographic information from job applicants is not new. The Internet Applicant rule adds that a contractor is required to solicit and collect such data from each applicant or Internet Applicant, whichever is applicable to the particular position. Voluntary self-reporting or self-identification is still generally the preferred method for collecting data on race, ethnicity, and gender, but in situations where self-reporting is not practicable or feasible, observer information may be used to identify race, ethnicity, and gender.
When should contractors collect race, ethnicity, and gender data?
Under the Internet Applicant rule, contractors are required to solicit race, ethnicity, and gender data from all individuals who meet the definition of "Internet Applicant" or the traditional definition of "applicant" depending upon which standard is applicable to the particular position. OFCCP does not mandate a specific time or point in the selection process that contractors must solicit this information, so long as the information is solicited from all Internet Applicants or traditional applicants, as appropriate.
Since the rule does not establish a time or point in the process for soliciting race/ethnicity/gender data from Internet Applicants, can contractors wait until after the hiring decision, or after interviews, to collect this data from all Internet Applicants for the position?
Contractors have the obligation to solicit demographic information about applicants or Internet Applicants where possible. Solicitation of demographic information does not need to be made immediately upon determining that an individual is an Internet Applicant, but should not be delayed so long that it is no longer feasible to effectively solicit the information. If delayed too long, the contractor may miss its opportunity to collect demographic information when it was possible to do so and fail to collect the data required by the rule. OFCCP can require that the timing of the solicitation be changed to comply with the regulations. Whether the contractor has waited too long to solicit demographic data will depend on the facts, such as whether the delay caused the contractor to be unable to identify a substantial portion of its Internet Applicant pool, the length of time between identifying an individual as an Internet Applicant and making the final hiring decision, and whether the contractor had reason to know that the delay would decrease its ability to receive responses to its solicitation of demographic information. There may be circumstances when it would be permissible to delay solicitation of demographic data until the interview or hiring stages, and other circumstances when it would not be permissible to do so.
How long are contractors required to keep the information from the searches? From what date?
How long a record must be maintained depends on the size of a company and the contract it holds. As expressed in the implementing regulations at 41 CFR 60-1.12 (online at http://www.dol.gov/dol/allcfr/ESA/Title_41/Part_60-1/41CFR60-1.12.htm), for companies with fewer than 150 employees or a contract of at least $150,000, the record retention period is one year. Contractors with at least 150 employees and a contract of $150,000 are required to maintain the records for a period of two years. That time period is measured from the time the record was created or from the time of the personnel action associated with that record, whichever is later. As an example, for a selected applicant the retention period would be calculated from the date of selection rather than from the date of application. If a contractor repeatedly considered an individual's resume, the retention period would start as of the last consideration given to that resume.
Note: where the contractor has received notice that a complaint of discrimination has been filed, that a compliance evaluation has been initiated, or that an enforcement action has been commenced, the contractor shall preserve all personnel records relevant to the complaint, compliance evaluation or enforcement action until final disposition of the complaint, compliance evaluation or enforcement action.
Can contractors make the self-identification of race, gender and ethnicity part of the registration process individuals complete to post their resume on a database?
Yes, provided that completing such self-identification is voluntary and failure to do so would not prevent the individual from posting his or her resume. The demographic information reported must be electronically maintained separately from the resume information that will be reviewed during the selection process and job seekers should understand this. For example, some contractors have developed "electronic tear-off sheets" for use with electronic applications that separate reported demographic information to be maintained for record keeping from electronic applications to be reviewed by contractors. OFCCP does not mandate a specific time or point in the employment selection process at which contractors must solicit this information, so long as the information is solicited from all Internet Applicants.
What do the Uniform Guidelines on Employee Selection Procedures (UGESP) have to do with the Internet Applicant final rule?
Nondiscrimination laws require employers to solicit race, gender, and ethnicity data from "applicants" under the Uniform Guidelines on Employee Selection Procedures (UGESP). UGESP Q&As assist employers in implementing UGESP. On March 4, 2004, the four UGESP agencies (the Equal Employment Opportunities Commission, the Department of Labor, the Department of Justice, and the Office of Personnel Management) published a proposed supplemental Q&A document in the Federal Register seeking comments under the Paperwork Reduction Act (69 FR 10152). That document has not been finalized and is still under consideration. In the coming months, the UGESP signatory agencies will continue to coordinate interagency discussions concerning the Q&As. In the Preamble to the March 4, 2004 document, the UGESP agencies expressly contemplated that "each agency may provide further information, as appropriate, through the issuance of additional guidance or regulations that will allow each agency to carry out its specific enforcement responsibilities." (69 FR 10153).
Does the Internet Applicant final rule change the text of the UGESP or Executive Order 11246, as amended?
No. The Internet Applicant final rule does not change either the UGESP or the Executive Order 11246, as amended. Contractors have an obligation to refrain from unlawful employment practices regardless of how the term "Internet Applicant" is defined. The final rule only clarifies OFCCP's regulations and procedures implementing recordkeeping under Executive Order 11246, as amended.
What are OFCCP's procedures for evaluating Internet Applicant recordkeeping under the final rule (section 60-1.12) and UGESP?
To make clear OFCCP's procedures regarding "Internet Applicant" recordkeeping under both rules, OFCCP has added a new regulatory provision, section 60-1.12(d). This provision explains that 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 impact of employee selection procedures on "Internet Applicants" as defined in the Internet Applicant final rule (and the impact of employment tests).
Where can I read or download a copy of the Internet Applicant final rule?
A Copy of this Final Rule is available on the Internet at http://www.dol.gov/esa/regs/fedreg/final/2005020176.htm or in PDF format at http://www.dol.gov/esa/regs/fedreg/final/2005020176.pdf. Copies in alternative formats may be obtained by calling OFCCP at (202) 693-0102 (voice) or (202) 693-1337 (TDD/TTY). The alternate formats available are large print.
See EEO-1 DEFINITION OF RACE/ETHNIC LINK: New Trends in EEOC and OFCCP (EEO-1 Definitions)