Apart from a wild guess, how does an employer identify the race, sex or ethnicity of an internet applicant whom it may never see? The Office of Federal Contract Compliance Programs has recently published for comment a proposed regulation that provides no guidance on that question – but it does clarify which internet applicants must be tracked. The proposed rule follows and complements a recent proposed guidance from several government agencies on the definition of an “applicant” in the context of the Internet and related technologies. (See Constangy’s Affirmative Action Alert from March 23, 2004.)
Under the OFCCP’s proposed regulation on internet applicants, an employer is not required to collect race, sex, or ethnicity information on anyone who does not meet the definition of “internet applicant” proposed in the regulation. Only individuals who meet these four criteria are considered “internet applicants”:
- They have submitted an expression of interest in employment through the Internet or related technologies;
- They have been actually considered for employment in a particular open position;
- Their expressions of interest indicate that they possess the “advertised basic qualifications” for the position; and
- They have not subsequently indicated they are no longer interested in the position.
- Contractors with fewer than 15 employees;
- Non-union contractors or work-sites; and
- Establishments in “right to work” states.
“Advertised basic qualifications” are akin to what many employers call “minimum requirements” or “screening criteria”: they must be objective and easily ascertainable by a third party, such as holding a commercial driver’s license, having a college degree, having certain specified prior work experience, or being fluent in a particular foreign language. “Advertised basic qualifications” does not include comparisons of the relative qualifications of two or more minimally qualified individuals.
Under the OFCCP’s proposed rule, employers would be required to maintain records of all electronic submissions of interest but would not be required to track race, sex, or ethnicity for anyone who did not meet the definition of an “internet applicant.”
It is important to bear in mind that there is no change to the rules for tracking applicants who apply the old-fashioned way – on paper. Employers are required to track race, sex, and ethnicity for everyone who submits a paper application, even those who fail to meet minimum requirements or who apply for positions for which the employer is not seeking applicants, depending on the employer’s standard practice. (This may be a reason to consider requiring all applications to be made electronically.) OFCCP acknowledges that the different standards for paper and electronic applications could be a problem, and has specifically sought comments on this issue.
The public comment deadline is May 28, 2004.
In other news, the Department of Labor has finalized the so-called Beck Rule. The rule, published by DOL on March 29, 2004, provides that non-exempt federal contractors must post a notice advising employees of their right to object to certain uses of union dues and fees. The name “Beck” originates from the case of Communications Workers v. Beck, a 1988 Supreme Court decision holding that union employees cannot be required to pay union dues or fees other than the share that relates to collective bargaining, contract administration, and adjustment of grievances.
Not all federal contractors must comply with the DOL’s Beck rule. Exemptions include the following:
The Beck Poster may be downloaded from the Department of Labor website (http://www.dol.gov/).
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