Finally – OFCCP Issues Final Rule on Internet Applicants for Federal Contractors!

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October 24, 2005

The Office of Federal Contract Compliance Programs (“OFCCP”) has issued its final regulations regarding recordkeeping requirements for Internet applicants. Federal Register, Vol. 70, No. 194 (Oct. 7, 2005). The following is an outline of the new regulations. If you have questions or concerns about how these new regulations affect your current recordkeeping practices, please contact Sara J. Ackermann at 715.845.4336.
1.  When do the regulations take effect?  On February 6, 2006
2.  What is the new definition of Internet applicant? Under the Final Rule, an “Internet applicant” must meet four criteria:
a. He or she “submits an expression of interest in employment” using either Internet or electronic technology, or submits the expression of interest via hard copy where the employer accepts both electronic and paper applications; and b. The employer “considers” the individual for employment in a particular position; and c. The “expression of interest” indicates that the individual meets the “basic qualifications” for the position; and d. The individual does not remove himself or herself from consideration at any point before receiving an offer of employment.
3.  What does it mean to “consider” the individual?     
You have “considered” an individual when you review whether the individual meets the criteria for the job. You can limit the number of individuals you consider by absolute numerical limits and random sampling that do not depend on an assessment of qualifications. For example, if you receive 1,000 resumes for a position, but predetermine that you will only have the resources to review the first 100 that you receive, you will be only “considering” those 100 for purposes of the definition. Also, a contractor may establish a protocol under which it refrains from considering expressions of interest that are not submitted in a certain manner, or that it will not consider unsolicited resumes. 4.  What are “basic qualifications”? Basic qualifications must be (1) non-comparative (not based on a comparison of one individual with another); (2) objective (not based on the employer’s subjective judgment); and (3) relevant to performance of the particular position and consistent with the employer’s business-related goals. Individuals who do not possess the basic requirements for a given position should not be included in the applicant pool. Also, passing a test of any kind is never a “basic qualification.” 5.  How does an individual remove himself or herself from consideration? There are three ways. First, the individual may contact you and state that he is no longer interested in the position. Second, the individual may fail to respond to your repeated attempts to contact him regarding his application. Finally, the individual may list requirements, such as salary or geography, that the company will not meet. For example, if the individual stated on his job application that he will only work in Wausau and the job is in Rhinelander, this individual has removed himself from consideration, and is not an applicant under this definition. 6.  What are the recordkeeping requirements for contractors? General requirements: Every contractor must keep all expressions of interest (i.e., applications and resumes) in a particular position that were “considered,” regardless of whether the individuals in the search qualify as Internet applicants. In addition, if you have an internal resume database, you must also keep a record of: i) each resume added to the database; (ii) the date each resume was added to the database; (iii) the position for which each search of the database was made; and (iv) the criteria used. If you use an external resume database (monster.com), you must keep a record of: (i) the position for which each search was made; (ii) the search criteria used; (iii) the date of the search; and (iv)the resumes of the individuals who met basic qualifications for the position and were considered.
Gender, Race and Ethnicity: Gender, race and ethnicity information must only be obtained from “applicants” as defined by the OFCCP. The new regulations suggest that contractors follow the recently issued Contractor Data Tracking Responsibilities, OFCCP Directive ADM 04-1 (Apr. 21, 2004) which encourages contractors to use tear off sheets, post cards or short forms to request demographic information. The OFCCP suggests that “these methods can be adapted to electronic formats for recordkeeping regarding Internet Applicants. 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 reviewed by employers.”

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