Affirmative Action Alert
This Is It! OFCCP Issues Final Rule on Internet Applicants"

October 11, 2005

The Office of Federal Contract Compliance Programs (“OFCCP”) has issued its final regulations regarding recordkeeping requirements for internet applicants. (Constangy issued an Affirmative Action Alert on the proposed regulations on April 19, 2004.)

The definition of an “internet applicant” to be included in the Uniform Guidelines on Employee Selection Procedures has yet to be finalized by the federal agencies reviewing the issue. (See Constangy's Affirmative Action Alert dated March 23, 2004.)

INTERNET APPLICANT FAQ’S

What is an “internet applicant”?

An “internet applicant” must meet four criteria:
  1. He or she “submits an expression of interest in employment” using internet or electronic technology, or submits an “expression of interest” the old-fashioned way (on paper) where the employer accepts both electronic and paper applications; and
  2. The employer considers the individual for employment in a particular position; and
  3. The “expression of interest” indicates that the individual meets the “basic qualifications” for the position; and
  4. The individual does not remove himself or herself from consideration at any point before receiving an offer of employment.

When have I “considered” an individual for employment?
The agency deems you to have “considered” an individual for employment when you review whether the individual meets any of the criteria for your job. There are a few exceptions, discussed below.

 Is there any way to narrow the pool of people who are “considered”?
Yes, but you can’t do it by looking at qualifications. The regulations say that the contractor may establish a protocol for excluding “expressions of interest” – such as refusing to accept unsolicited resumes, limiting the number of “expressions of interest” accepted, or accepting only a random sampling of all “expressions of interest” received. The exclusions cannot be based on the individuals’ qualifications, and there must be an “appropriate pool” remaining.

What are “basic qualifications”?
Is it the same thing as “minimum qualifications”?
To answer the second question first, NO. “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. For example, a contractor hiring an accountant might want someone with an accounting degree and CPA license, and who was, in the opinion of management, a “go-getter.” The OFCCP would consider the accounting degree and CPA license to be “basic qualifications” because they are non-comparative, objective, and relevant to job performance. But even though you might consider the “go-getter” part to be a minimum requirement for the position, it would not be a “basic qualification” in the OFCCP sense because determining whether someone is a “go-getter” requires a subjective judgment on your part.

Also, passing a test of any kind is never a “basic qualification.”
Finally, your “basic qualifications” must either be advertised, or established (documented internally) before you consider any “expression of interest” for the position.

How does an individual take himself or herself out of the running so as not to be an applicant?
First, the individual can simply tell you that he or she is not interested in the position. Second, the individual can “passively” remove himself or herself by “repeated non-responsiveness to inquiries” from you. The regulations and the comments do not define how many “repeats” are necessary for “passive” removal. But use of the word “repeated” seems to indicate that it might not be enough for you to make one unreturned call.

The other way an individual may remove himself or herself is by specifying requirements that you can’t meet: for example, having a salary requirement in excess of what you can offer, or a stated refusal to work the hours required by the position.

These requirements seem pretty tough.
They are, but keep in mind that these rules apply only to applicant tracking for affirmative action purposes. When you are ready to make an actual hiring decision, it is perfectly fine to set the bar a little higher!

So, if someone is an “internet applicant,” what do I have to do?
You have to comply with the OFCCP’s recordkeeping requirements (discussed below), and you have to try to determine the race, sex, and ethnicity of each internet applicant.

What’s the rule for contractors who accept only paper applications?
If you don’t accept electronic applications at all, then you must track everyone who applies for a job, regardless of whether they meet “basic qualifications” and regardless of whether you are even seeking applicants.

In 25 words or less, what are the recordkeeping requirements?

  • Every contractor must keep all expressions of interest in a particular position that were “considered.”
  • If you have an internal resume database, you must also keep a record of (1) each resume added to the database, (2) the date the resume was added, (3) the position for which each search of the database was made, and (4) for each search, the criteria used for selection.
  • If you use an external resume database (for example, monster.com), you must keep a record of (1) the position for which each search of the database was made, and for each such search (2) the search criteria used, the date of the search, and the resumes that both met basic qualifications for the position and were considered.

(Sorry that was more than 25 words, but it was the best we could do!)

With these new rules, who should be included in my company’s adverse impact analysis for applicants to hires?
If you have “internet applicants,” then only “internet applicants” as defined above have to be included in your adverse impact analysis of applicants to hires. (For example, you would not have to include individuals who failed to meet your “basic qualifications.”) Keep in mind that this same rule applies to paper applicants if you accept both internet and paper applications.

Where can I read a copy of the regulations?
A PDF file is posted below. If you are a federal contractor, we strongly recommend that you read the regulations in their entirety. The comments section (also posted) contains a lot of helpful information, too.

When do the regulations take effect?
On February 6, 2006.

If I need help in getting my applicant process in shape before February, whom should I call?
We will be glad to help! Please do not hesitate to contact any member of our Affirmative Action Practice Group or, if you prefer, the Constangy attorney of your choice.

OFCCP Final Rule on Internet Applicant, October 7, 2005