December 2005

New OFCCP Regulation Defines "Internet Applicant" for Government Contractors

By Jeffrey S. Kopp, Senior Counsel, Foley & Lardner LLP

The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) administers and enforces Executive Order 11246, which prohibits federal contractors doing more than $10,000 in government business in one year from discriminating in employment decisions on the basis of race, color, religion, gender or national origin. The Executive Order also requires government contractors to take affirmative action to provide equal employment opportunities in the workplace.

Covered employers with 50 or more employees doing $50,000 or more government contract work must develop a written affirmative action program for each of its establishments, and are required to obtain gender, race and ethnicity data on employees and, where appropriate, applicants.

Until last month, it was very difficult for covered employers to determine which applicants to track for purposes of required recordkeeping obligations under the regulations issued by the OFCCP. In the internet and technology age, where employers may be bombarded with literally thousands of resumes from applicants they do not personally know, it has become increasingly to who were applicants that the employer must track for adverse impact analyses.

Last month, in an attempt to resolve these challenges, the OFCCP published a final rule defining an “Internet applicant” for record gathering purposes and modifying OFFCP applicant recordkeeping requirements. The rule becomes effective on February 6, 2006, and can be found at 41 CFR Part 60-1.

How Does the OFCCP Define an “Internet Applicant?”

Under the new rule, an individual applying for a position with a covered employer is an Internet applicant if he/she satisfies all of the following four criteria:

1. The individual submits an expression of interest in employment through the Internet or related electronic data technologies, such as e-mail or an internal employer Web site.



2. The employer considers the individual for employment in a particular position by assessing the substantive information provided with respect to the qualifications involved with the position.



3. The individual’s expression of interest indicates that he or she possesses the basic qualifications for the position. Basic qualifications are those that the employer advertises to potential applicants that they must possess to be considered for the position, or if the employer does not post for the job, which the employer establishes in advance and maintains, and meet the following three conditions: (1) they are non-comparative, (2) objective, and (3) relevant to the performance of the position.



4. At no point in the employer’s selection process before receiving an offer, the individual removes himself or herself from further consideration or otherwise indicates that he or she is no longer interested in the position. An employer may determine that an applicant has removed himself or herself from further consideration based on the individual’s stated salary requirements, provided the employer has a uniformly and consistently applied policy or procedure of not considering similarly situated applicants.

Under this new definition, covered employers must count individuals who satisfy all four of these criteria as Internet applicants, and must include these individuals in the statistics required for affirmative action requirements under the Executive Order.

The benefit of the new rule is that unsolicited applicants and those submitted not in accordance with the employer’s protocols need not be included. The rule also includes hard-copy applications in the definition of Internet applicant if the employer considers both electronic applications and traditional applications at the same time or otherwise in a Web site, invites an applicant to submit an application by hard-copy.

What are the Employer’s Recordkeeping Requirements

The new final rule also provides general requirements for record retention. Records pertaining to hiring, assignment, promotion, lay off or termination, rates of pay and other employment decisions must be maintained. Employers must, where possible, obtain the gender, race and ethnicity for each applicant or Internet applicant.

In addition, employers must retain all job advertisements and postings, applications, resumes and all other expressions of interest submitted by an Internet applicant that the employer considered for a particular position. For internal databases maintained by the employer, the employer must maintain a record of each resume added to the database, the date when the resume was added, the position for which each search of the database was made, and the corresponding search criteria. OFCCP will require Internet applicant records to be considered when conducting adverse impact evaluations.

What Steps can Employers Take Before the Rule becomes Effective?

Covered employers can take the following steps to minimize their risk and reduce their workload before the rule becomes effective in February 2006:

1. Establish specific processes for posting job notices on the Internet.



2. Do not solicit or accept blanket resumes.



3. Ensure that job postings contain basic minimum qualifications that avoid comparative or subjective determinations, such as “graduated from a top school.”



4. Consider using salary requirements or time deadlines to determine whether an applicant has removed himself or herself from consideration.

For further information or questions regarding your obligations under the new rule or under Executive Order 11246, please contact Jeffrey S. Kopp at Foley & Lardner LLP’s Detroit, Michigan office at 313.234.7140 or jkopp@foley.com.

Note: This update provides information of general interest presented in summary form, and does not constitute individual legal advice.