EMPLOYMENT LAW
Client Alert: New Rules Governing
Internet Applicants Now in Effect
February, 2006
By Dana R. Scott, HR and Benefits Consultant
The Office of Federal Contract Compliance Programs (OFCCP) issued its rules regarding Internet Applicants in October of last year. The rules are effective February 6, 2006 and address recordkeeping by federal contractors/subcontractors, hiring practices relative to Internet Applicants and the solicitation of ethnicity and gender from those applicants. Federal contractors and subcontractors will need to update their systems to comply with these requirements.
The final rule defines an Internet Applicant as an individual who satisfies the following four criteria:
• Individual submits an expression of interest in employment via the Internet or related electronic technology;
• Contractor considers the individual for employment for a particular position;
• Individual's expression of interest indicates s/he possesses the basic qualifications for the position; and,
• Individual does not remove him/herself from consideration or otherwise indicate s/he is no longer interested in the position.
Under the new rule, an "expression of interest" includes an individual who sends a resume via regular mail, fax or personal delivery rather than email, if the applicant learned of the position on the contractor's website.
Also under the new ruling, "basic qualifications" are those the contractor has advertised or posted, and maintains a record of prior to considering any applicants for that position. In addition the basic qualifications must be non-comparative, objective and relevant to the specific position. These criteria are defined by the OFCCP as follows:
- Non-comparative - A specific number of years in a particular field/position as opposed to a comparative requirement of having the most years experience of the top candidates;
As an example, choosing the applicant that as the most experience when the position requires only two years of relevant experience is not allowed.
- Objective - A Bachelor's Degree in a specific field, not a degree from a "good school;"
- Relevant - The qualifications must be relevant to the performance of the specific position and assist the contractor in achieving its business goals.
The new ruling also provides that a lack of interest by a candidate will/can remove the individual from consideration. This lack of interest may take many forms including actively stating that s/he is no longer interested in the position, declining an offer or interview or not returning the contractor's phone calls regarding the position.
A contractor may establish procedures as to how expressions of interest must be submitted, and if those protocols are not followed, the contractor is free to ignore that applicant's expression of interest. As an example, a contractor may indicate that it will not consider unsolicited resumes, or those that do not reference a specific position (by number, name, etc.). Or, a contractor may establish a protocol that if a large number of applications are submitted for a particular position, it will use a random sampling of those applications, provided that the sampling is appropriate to the number of expressions of interest that have been received. However, it is critical that the contractor be consistent in its application of these protocols.
The OFCCP's new ruling also advises contractors to ensure they are soliciting gender and ethnicity information from all applicants. Many contractors currently use tear-off sheets with their applications, and these can easily be adapted to electronic applications. It is critical to emphasize to applicants that submission of the requested information is entirely voluntary, and that providing or declining to provide the information will have no bearing on the contractor's hiring decisions. Should the applicant decline to provide the information, the contractor may utilize visual observation during the interview process, but should not guess as to a candidate's gender or ethnicity.
The new guidelines also outline the steps contractors must follow in order to retain all of the appropriate information regarding applicants. The rules articulate what records the contractor must retain in its internal database as opposed to those it retains utilizing an external one similar to Monster.com or others. For those already familiar with keeping an Applicant Flow Log, some of these changes will not be new, such as assigning an open position a numerical code or requisition number, and developing disposition codes for applicants, including when an applicant does not meet the position's minimum qualifications or when an applicant withdraws from consideration.
More information may be found at the OFCCP's website,
www.dol.gov/esa/ofccp, including the actual rule and a PowerPoint presentation about it.
Dana Scott, Human Resources and Benefits Consultant at the Concord law firm of Gallagher, Callahan & Gartrell, regularly assists clients with affirmative action plan development and compliance with OFCCP requirements. For more information, call 800-528-1181 ext. 236.
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