|
THIS
IS IT!
OFCCP ISSUES FINAL RULE ON INTERNET APPLICANTS
By Robin
E. Shea,
Winston-Salem, N.C.
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:
- 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
- The employer considers the individual
for employment in a particular position; and
- The “expression of interest” indicates
that the individual meets the “basic qualifications” for
the position; and
- 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
> top
|
|
