Internet Applicants – FAQ
Important New OFCCP Interpretations
Below you will find OFCCP interpretations relative to the newly defined Internet Applicant rule issued in 2006. If you are a Government Contractor it is very important that you understand and establish a selection protocol that is aligned with these interpretations. If you are audited by the OFCCP, you will be expected to demonstrate that you understand this rule and are using policies and practices that are in compliance. You may find more information on these interpretations and the Internet Applicant Rule as well as other information about compliance expectations for Government Contractors on the official OFCCP website. A link to this site is provided in the Suggested Links section of our website or you can go directly to http://www.dol.gov/esa/ofccp/ where you will find more information on this subject including the Federal Register Notice, a well prepared and summarized Internet Applicant Presentation, and the Frequently Asked Questions that have been listed below. You will also find a wealth of other information on this site and other Department of Labor sites about important workplace laws that apply to Government Contractors and other employers.
What is the purpose of the Internet Applicant final rule?
The Internet Applicant final rule, issued by the Office of Federal Contract Compliance Programs (OFCCP), addresses recordkeeping by Federal contractors and subcontractors about the Internet hiring process and the solicitation of race, gender, and ethnicity of “Internet Applicants.” The rule is the product of a lengthy deliberative process, including public input, to develop a definition of “Internet Applicant” applicable in the Internet age (added to 41 CFR 60-1.3). The recordkeeping requirements of the rule (amending 41 CFR 60-1.12) will provide meaningful data that OFCCP will use to enhance its enforcement of the nondiscrimination laws.
When does this Internet Applicant rule become effective and when will Federal contractors have to begin complying with the rule’s provisions?
The final rule becomes effective February 6, 2006, one-hundred twenty days after the date of publication in the Federal Register. A contractor’s recordkeeping practices must comply with the new rule on that date. For example, by February 6, 2006 a contractor must solicit demographic information about Internet Applicants and retain the records required by the rule for hiring decisions made on or after that date. The rule does not apply retroactively to hiring decisions made before February 6, 2006.
What if a contractor is having difficulty updating its systems to comply with the requirements of the Internet Applicant Rule? Will the effective date of the rule be extended?
No, the effective date of the Internet Applicant Rule will not be extended. The Rule is effective on February 6, 2006 (see FAQ above). However, under OFCCP’s enforcement discretion, for a period of 90 days following February 6, 2006, OFCCP will not cite a contractor for a purely technical recordkeeping violation for failure to comply with the Internet Applicant final rule, provided that the contractor (1) demonstrates that it is taking reasonable steps to update its systems to comply with the rule, including a projected date of compliance, and (2) collects and maintains records according to the established procedures consistent with OFCCP’s recordkeeping requirements that preexisted the Internet Applicant final rule, i.e., 41 CFR 60-1.12.
Will contractors need to amend their current affirmative action programs in response to the new Internet Applicant rule?
No. As part of their affirmative action programs (AAPs), contractors are required to analyze personnel activity data to determine whether there are selection disparities. The amendments to the recordkeeping requirements in section 60-1.12 will apply to data on hiring decisions made on or after February 6, 2006. AAPs created before February 6, 2006 will not need to be amended.
How does this Internet Applicant rule change existing rules?
The final rule:
- Defines “Internet Applicants,” job seekers applying for work through the Internet or related electronic data technologies from whom contractors must solicit demographic information;
- Prescribes the records contractors must maintain about hiring done through use of the Internet or related electronic data technologies; and,
- Explains the records OFCCP will require contractors to produce when evaluating whether a contractor has maintained information on impact and conducted an adverse impact analysis under 41 CFR Part 60-3, the Uniform Guidelines on Employee Selection Procedures.
What is the definition of an “Internet Applicant” in the final rule?
An Internet Applicant is defined as an individual who satisfies the following four criteria:
- The individual submits an expression of interest in employment through the Internet or related electronic data technologies;
- The contractor considers the individual for employment in a particular position;
- The individual’s expression of interest indicates the individual possesses the basic qualifications for the position; and,
- The individual at no point in the contractor’s selection process prior to receiving an offer of employment from the contractor, removes himself or herself from further consideration or otherwise indicates that he or she is no longer interested in the position.
What standard applies to the solicitation of demographic information if a contractor considers both electronic and traditional paper expressions of interest for the same position?
When a contractor considers expressions of interest for a position via both the Internet or related electronic data technologies and paper applications, the Internet Applicant standard applies to the solicitation of demographic information from all applicants for that position.
What standard applies to the solicitation of demographic information from job applicants if a contractor does not consider electronic expressions of interest for a position?
For those positions for which the contractor does not consider any electronic submissions, i.e., does not use the Internet or related electronic data technologies, the traditional OFCCP recordkeeping standards apply. That is, contractors must solicit demographic information from job seekers who are “applicants” under the definition of applicant contained in Question and Answer 15 of the Adoption of Questions and Answers to Clarify and Provide Common Interpretation of the Uniform Guidelines on Employee Selection Procedures:
15. Q. What is meant by the terms “applicant” and “candidate” as they are used in the Uniform Guidelines?
A. The precise definition of the term “applicant” depends upon the user’s recruitment and selection procedures. The concept of an applicant is that of a person who has indicated an interest in being considered for hiring, promotion, or other employment opportunities. This interest might be expressed by completing an application form, or might be expressed orally, depending upon the employer’s practice.
The term “candidate” has been included to cover those situations where the initial step by the user involves consideration of current employees for promotion, or training, or other employment opportunities, without inviting applications. The procedure by which persons are identified as candidates is itself a selection procedure under the Guidelines.
A person who voluntarily withdraws formally or informally at any stage of the selection process is no longer an applicant or candidate for purposes of computing adverse impact. Employment standards imposed by the user which discourage disproportionately applicants of a race, sex or ethnic group may, however, require justification. Records should be kept for persons who were applicants or candidates at any stage of the process.
If a contractor uses the Internet to advertise a position but requires all individuals to complete a paper application form, will the individuals that apply be considered Internet Applicants?
No. It is not the method of advertising a job that determines the applicability of the Internet Applicant rule. Rather, the determining factor is whether the expression of interest in employment was made through the Internet or related electronic data technologies.
Do the regulations apply to the job title or to the contractor? Specifically, if the contractor uses the Internet Applicant rule for some positions (e.g., professional and technical), but not for others (e.g., entry level blue collar and clerical), are all of the expressions of interest received by the contractor covered by the Internet Applicant rule, or only those relevant to a particular position where the Internet or other electronic technology was used?
The regulations’ definition of “Internet Applicant” applies on a position-by-position basis. The new rule applies only to those positions for which the contractor uses the Internet or related electronic technologies.
Does the contractor need to explain which applicant definition they are using?
A contractor would have to explain whether it employed the Internet Applicant definition as part of a compliance evaluation or complaint investigation.
How will OFCCP decide which desk audit submissions to accept at face value and which to examine in depth in order to ensure that the proper race/gender/ethnicity information is included?
The Internet Applicant rule emphasizes that OFCCP will compare the proportion of women and minorities in the contractor’s Internet Applicant pool with labor force statistics or other data on the percentage of women and minorities in the relevant labor force in order to evaluate the impact of basic qualifications. If there is a significant difference between these figures, OFCCP will investigate further as to whether the contractor’s recruitment and hiring practices conform with E.O. 11246 standards.
How will OFCCP coordinate review of the Internet Applicant issue across regions, especially when the same contractor is being evaluated and record keeping practices are a product of the contractor’s national policy?
Training for the application of the Internet Applicant rule will be provided to field staff to ensure consistency. Additionally, current OFCCP procedures call for Compliance Officers to utilize the Case Management System to identify issues that may extend beyond a particular evaluation and to bring potential nationwide/corporate-wide systemic issues to the Regional Office.
What does the term “Internet or related electronic data technologies” refer to?
While OFCCP will not provide a precise definition of the term “Internet or related electronic data technologies” in recognition of rapid changes in technology in this area, OFCCP does intend this term to include the types of technologies referenced in the preamble to the proposed UGESP Additional Questions and Answers. Those six types of Internet-related technologies and applications that are widely used in recruitment and selection today include:
- Electronic mail/email
- Resume databases
- Job banks
- Electronic scanning technology
- Applicant tracking systems/Applicant service providers
- Applicant screeners
Would the submission of resumes via a fax be considered as expressing an interest under the Internet Applicant rule?
Since fax machines transmit documents by digitized signals – and today can send to an email account and print out faxes sent by an email account – transmission of a resume by fax constitutes transmission by “related electronic data technologies.”
Would an individual using Voice over Internet Protocol (VOIP) or a company that uses VOIP rather than traditional telephones to make or receive job inquiries or “expression of interests” be considered as using the “Internet or related electronic data technologies” for inclusion under the Internet Applicant rule
Wikipedia, an online Internet encyclopedia, describes Voice over Internet Protocol (also called VOIP, IP Telephony, Internet telephony, and Broadband Phone) as the routing of voice conversations over the Internet or any other IP-based network. The voice data flows over a general-purpose packet-switched network, instead of traditional dedicated, circuit-switched telephony transmission lines.
While OFCCP does not provide a precise definition of the term “Internet or related electronic data technologies” in recognition of rapid changes in technology in this area, OFCCP does intend this term to include the types of technologies referenced in the preamble to the Internet Applicant final rule. Those six types of Internet-related technologies and applications that were discussed in the preamble are:
- Electronic mail/email
- Resume databases
- Job banks
- Electronic scanning technology
- Applicant tracking systems/Applicant service providers
- Applicant screeners
All of these technologies permit the electronic submission or management of a high volume of expression of interest written data.
We have also posted a related question, immediately above, regarding the use of faxed documents which concludes that transmission of a resume by fax constitutes transmission by “related electronic data technologies.” Fax technology permits the electronic submission of a high volume of written expressions of interest.
While VOIP may use the Internet, VOIP functions to transmit individual voice communications akin to a telephone rather than a high volume of written expressions of interest data like the six examples contained in the preamble. Accordingly, OFCCP would not consider VOIP an Internet or related data technology under the Internet Applicant rule.
What is the definition of basic qualifications?
The “basic qualifications” which an applicant must possess means qualifications that the contractor advertised to potential applicants or criteria which the contractor established in advance. In addition, the qualifications must be:
- Noncomparative features of a job seeker (e.g. three years’ experience in a particular position, rather than a comparative requirements such as being one of the top five among the candidates in years of experience);
- Objective (e.g., a Bachelor’s degree in accounting, but not a technical degree from a good school); and
- Relevant to performance of the particular position.
How would this work in practice?
Here is an example of how this would work: A contractor initially searches an external job database with 50,000 job seekers for 3 basic qualifications for a bi-lingual emergency room nursing supervisor job (a 4-year nursing degree, state certification as an RN, and fluency in English and Spanish). The initial screen for the first three basic qualifications narrows the pool to 10,000. The contractor then adds a fourth, pre-established, basic qualification, 3 years of emergency room nursing experience, and narrows the pool to 1,000. Finally, the contractor adds a fifth, pre-established, basic qualification, 2 years of supervisory experience, which results in a pool of 75 job seekers. Under the Internet Applicant rule, only the 75 job seekers meeting all five basic qualifications would be Internet Applicants, assuming the other three prongs of the “Internet Applicant” definition were met.
Do contractors need to rewrite all their job descriptions to reference basic qualifications?
No. Basic qualifications for a position could be, but are not required to be, stated in a job description. Under the Internet Applicant rule, basic qualifications need to be advertised to potential applicants or, if the contractor does not advertise for the position, need to be established in advance by making and maintaining a record of such qualifications.
Are employment tests considered basic qualifications?
No. Employment tests used as employee selection procedures, including on-line tests, are not considered basic qualifications under the Internet Applicant rule. Contractors are required to retain records about the gender, race, and ethnicity of individuals who take a test used to screen them for employment, regardless of whether the test takers are “Internet Applicants.”
How will OFCCP ensure that contractors do not use basic qualifications to discriminate?
Contractors will not be able to use basic qualifications in order to discriminate because:
- The rule requires a contractor to retain, for possible review, the expressions of interest it considered, even those of individuals who are not Internet Applicants, for possible OFCCP review.
- A contractor must similarly retain records of all the basic qualifications used to develop a pool of Internet Applicants.
- OFCCP will rely on Census and other labor market data to assess contractors’ hiring practices for potential discrimination and will carefully review the basic qualifications.
- OFCCP’s compliance evaluations will not be limited to an evaluation of those records produced by the contractor. During compliance evaluations OFCCP will continue to look broadly at all aspects of a contractor’s compliance with its obligations to refrain from discrimination in recruitment, hiring, and other employment practices, including the possible adverse impact of screens for basic qualifications.
Can the basic qualifications be modified during the selection process, or do they need to be set prior to the beginning of the process?
All basic qualifications must be established prior to the selection process. Basic qualifications are the qualifications advertised to potential applicants as being required in order to be considered for the position. If the contractor does not advertise for the position but, for example, searches an external resume database, the contractor must make and maintain a record of basic qualifications to be used in the search prior to considering any expression of interest for that particular position.
What if after establishing the basic qualifications for a position, more applications were received than expected. How can the pool of applications to be considered be narrowed to a manageable size?
If a large number of individuals meeting the basic qualifications apply, the contractor has three options. First, the contractor may use data management techniques to limit the number who must be contacted to determine their interest in the position, assuming the sample is appropriate in terms of the pool of those meeting the basic qualifications. Second, the contractor could screen expressions of interest to determine whether some job seekers have removed themselves from consideration based on information the individual has provided in his or her expression of interest, such as salary requirements or preferences as to type or location of work, provided that the contractor has a uniformly and consistently applied policy or procedure of not considering similarly situated job seekers. Finally, the contractor may screen the pool of job seekers possessing basic qualifications for additional preferred qualifications to narrow the pool of those to be further considered. However, demographic information must be solicited from all job seekers meeting the basic qualifications originally established prior to qualification screening, assuming they meet other elements of the Internet Applicant definition.
What if after establishing the basic qualifications for a position, fewer applications were received than expected. How can the pool of expressions of interest be broadened? Can the contractor go back and make exceptions to basic qualifications?
Contractors may search for basic qualifications serially or in combination. They may search a database for some, but not all, of the basic qualifications and not screen further for the remainder of the basic qualifications. If so, the contractor must solicit demographic data for individuals meeting the subset of “basic qualifications” actually used for screening job seekers, provided the other Internet Applicant criteria are met. A contractor cannot make exceptions to basic qualifications on a case-by-case basis without soliciting demographic information from all job seekers meeting the basic qualifications actually required for anyone to be considered further for the position.
How will OFCCP determine whether a complex, technical qualification standard is objective?
A basic qualification is objective if a third-party, with the contractor’s technical knowledge, would be able to evaluate whether the job seeker possesses the qualification without more information about the contractor’s judgment.
Can the contractor exclude from further consideration any individual who does not fulfill the basic qualifications summary of skills required in the contractor’s advertised job description?
Yes, if the basic qualifications meet the requirements under the Internet Applicant rule and the basic qualifications have been uniformly and consistently applied to all other similarly situated individuals.
Can the contractor screen for basic qualifications through questions in the on-line application?
Yes, provided that the contractor has a uniformly and consistently applied policy or procedure of not considering similarly situated job seekers based on their responses to the questions and the questions are consistent with screening for “basic qualifications.” Note that if a question had an adverse impact on minorities or women, the contractor would have the obligation to show that the question is job related and consistent with business necessity.
Can contractors utilize an employment test (such as a personality, knowledge or physical capability test) as part of the online application process?
Nothing in the Internet Applicant rule would prohibit the practice. However, employment tests used as employee selection procedures, including on-line tests, are not considered basic qualifications under the Internet Applicant rule and contractors are required to retain records about the gender, race and ethnicity of the individuals who take a test used to screen them for employment, and other records made or kept about the test, regardless of whether the test takers are Internet Applicants under section 60-1.3.
Can contractors use different basic qualifications for the same job title?
As used in the Internet Applicant rule, the basic qualifications are those qualifications associated with the position filled. Nothing in the final rule would prohibit a contractor from utilizing different basic qualifications for different positions with the same job title, keeping in mind that the basic qualifications must be advertised or established in advance, and must be noncomparative, objective, and relevant to the particular position.
What happens if contractors use search criteria beyond the basic qualifications?
The final rule does not prohibit the use of additional search criteria in making a selection decision. However, an individual is an Internet Applicant if he or she meets all of the pre-established basic qualifications plus the other three prongs of the definition. The contractor could be found in violation of Executive Order 11246 if it failed to maintain required records, such as the resume from an external resume database of each individual that met the basic qualifications or to collect the required demographic data on all individuals who met the four “Internet Applicant” criteria (i.e., those who met the “basic qualifications,” even if additional screening was done based on additional qualifications).
What do contractors do with searches for basic qualifications of an external resume database that produce false positives? For example if a search was made of an external database for a computer programmer with JAVA experience, the search results may include people with coffee shop java experience. Is the contractor obligated to retain all resumes produced by the JAVA search?
No. Only those individuals with computer programmer JAVA experience would meet the basic qualification. Those with only coffee house java experience would not possess the basic qualifications. Accordingly, the company would not be required to retain the resumes of those with only coffee shop experience.
Consideration of Job Seekers
What is the definition of “considers the individual for employment in a particular position,” for purposes of the definition of “Internet Applicant”?
The definition of “considers the individual for employment in a particular position” for purposes of paragraph 60-1.3 (1)(ii) of this definition means that the contractor assesses the substantive information provided in the expression of interest with respect to any qualifications involved with a particular position.
A contractor may establish a protocol under which it refrains from considering expressions of interest that are not submitted in accordance with standard procedures the contractor establishes.
Likewise, a contractor may establish a protocol under which it refrains from considering expressions of interest, such as unsolicited resumes, that are not submitted with respect to a particular position. If there are a large number of expressions of interest, the contractor does not “consider the individual for employment in a particular position” by using data management techniques that do not depend on assessment of qualifications, such as random sampling or absolute numerical limits, to reduce the number of expressions of interest to be considered, provided that the sample is appropriate in terms of the pool of those submitting expressions of interest.
Is a contractor required to consider for employment every job seeker who expresses an interest in employment through the Internet and possesses the basic qualifications for a particular position?
No. OFCCP does not provide a blanket requirement that contractors must consider any and all expressions of interest they receive, regardless of the manner or nature of the expression of interest – even if the job seeker possesses the basic qualifications. If the contractor has established standard procedures that job seekers must follow in order to express an interest in employment, the contractor does not have to consider those individuals who do not follow those procedures. Similarly, the contractor does not have to consider for employment individuals who do not specify a particular position, so long as that is the contractor’s consistent practice. Additionally, if there are a large number of expressions of interest, the contractor may limit the number of individuals it considers by using random sampling, absolute numerical ceilings, or other data management techniques, provided the sampling procedure is appropriate.
Does a contractor “consider” an individual merely by running a (basic qualifications) search that brings up the individual’s resume, if the contractor never opens the resume?
If the contractor does not open the resume as a result of appropriate data management techniques that limit the number of resume “hits” that are reviewed, then the contractor has not “considered” that individual.
Can a company use a BOT to search an external database to fill a position? [A BOT (short for “robot”) is a program that operates as an agent for a user or another program or simulates a human activity. On the Internet, the most ubiquitous bots are the programs, also called spiders or crawlers, that access Web sites and gather their content for search engine indexes].
Yes. BOT searches of external resume databases are treated the same as other methods for searching external resume databases. The BOT may be used to search for basic qualifications for the position without retaining a copy of all resumes reviewed. If the BOT searches beyond the basic qualifications, the company could be found in violation of the Executive Order if it failed to maintain the resumes of each individual that met the basic qualifications. Other records required to be maintained regarding searches of external resume databases also must be maintained for BOT searches of such databases.
Is there an obligation to keep a record of the data management technique used? Specifically, must records be maintained about the criteria of random sampling used or the manner by which a numeric limit was determined?
While there is no express requirement for the contractor to document the techniques employed, contractors must retain records they create memorializing or implementing data management techniques under OFCCP’s general record retention requirement to retain any employment or personnel record made by the contractor, including records pertaining to hiring. 41 CFR 60-1.12(a). Failure to do so may weaken the company’s ability to defend its practices.
Is there a minimum number of expressions of interest that must be considered when a data management technique is used to limit the number of expressions of interest?
No. OFCCP will allow the contractor to determine the number of expressions of interest that are considered for each specific position as long as the pool is appropriate in terms of those submitting expressions of interest for that position, that is, the data management techniques are facially neutral and do not produce disparate impact based on race, gender, or ethnicity in the expressions of interest considered. OFCCP will consider labor force statistics in evaluating whether the pool of expressions of interest to be considered produces disparate impact.
How will OFCCP determine whether data management techniques used to reduce the pool of expressions of interest to be considered have a disparate impact, if the race/gender/ethnicity composition of the pool that is reduced using these techniques is not known?
OFCCP will consider labor force statistics in evaluating whether the pool of expressions of interest to be considered produces disparate impact, comparing the representation of gender, race and ethnic groups in the pool selected for consideration with the representation of those groups in the relevant labor market. If the difference in representation rates is sufficiently great, OFCCP may investigate further to determine the cause of the disparities. Part of the reason that OFCCP requires contractors to maintain records of individuals that express an interest in employment, even if they do not qualify as Internet Applicants, is to allow OFCCP to verify that basic qualifications were uniformly and consistently applied to job seekers. OFCCP also may use the expressions of interest to verify that data management techniques were applied in a neutral fashion.
Can random sampling ever be viewed as a “criterion” for employment, facially neutral or otherwise?
Random sampling is not a basic qualification.
Can contractors use data management techniques as part of the database search to limit the number of resumes to be considered?
Yes, data management techniques can be applied to limit the number of people being considered for a position. However, the techniques must be applied before giving individuals consideration, must not depend on assessment of qualifications, must be representative of the total pool, and must not have an adverse impact.
A contractor uses software to search a large resume database for job seekers who are the “best fit” for the qualifications required for a particular position. The software uses a “hit” feature that identifies and ranks candidates who best match the job qualification search criteria. Is the software a data management technique such that resumes reviewed by the software have not been considered for a particular position?
No. A job seeker is “considered” for employment in a particular position if the contractor assesses the substantive information provided in the resume with respect to any qualification involved with the particular position. The software reviews job seekers’ qualifications and ranks job seekers based not merely on whether they possess the basic qualifications but on an assessment of the extent to which they possess those qualifications vis-à-vis other candidates. Consequently, the resumes of job seekers reviewed by the software have been considered for a particular position under the Internet Applicant rule. Section 60-1.3(3) of the Internet Applicant rule explains that only data techniques that do not depend on an assessment of qualifications, such as random selection, are treated as data management techniques rather than consideration under the Internet Applicant rule.
If a contractor believes that a search of a large external resume database will identify a large number of resumes meeting the basic qualifications for a position, how may the contractor reduce the number of resumes it will be required to retain as a result of the search?
The Internet Applicant rule provides contractors with the flexibility to design search procedures that may significantly reduce the number of resumes they will need to retain from a search of a large external resume database. First, a contractor may implement data management techniques that do not depend on assessment of qualifications, such as random sampling, to reduce to a manageable number the resumes to be considered and, in turn, to be retained. Second, a contractor may establish a search protocol under which it initially searches the database for resumes indicating an interest in the position (e.g., type of position, location, or salary sought by the job seeker). OFCCP does not view use of information contained in a resume to gauge a job seeker’s interest in a particular position to be “consideration” of a resume (that is, an assessment of the substantive information provided in the resume with respect to any qualification involved with the particular position) provided that the contractor has uniformly and consistently applied the same procedure to all similarly situated job seekers. The contractor could then “consider” the subset of job seekers indicating an interest in the position to identify those meeting the basic qualifications for the position. Under the Internet Applicant rule the contractor would need to retain only those resumes considered that meet the basic qualifications for the position. Either method would have the effect of reducing the number of resumes to be retained by initially reducing the number of resumes considered.
For example, assume a contractor is looking for someone with a Bachelor’s degree in engineering to work as an engineer in Cleveland, Ohio for $60,000 per year. The contractor would like to search ManyResumes.com for candidates. Also assume that a nationwide search of ManyResumes.com would produce 5000 resumes of job seekers with a B.S. in engineering, 200 job seekers interested in working as an engineer in Cleveland for $60,000 a year, and 100 job seekers who both possess a B.S. in engineering and want to work as an engineer in Cleveland for $60,000 per year. If the contractor’s initial search of ManyResumes.com is for anyone meeting the basic qualification of a B.S. in engineering, the search will produce 5000 resumes, all of which would need to be retained under 41 C.F.R. 60-1.12(a). On the other hand, if the contractor initially searches ManyResumes.com for job seekers interested in working as an engineer in Cleveland for $60,000, the search will produce 200 resumes. If the contractor searches the pool of 200 resumes for the basic qualification of a B.S. in engineering, the search will produce 100 resumes that must be retained.
Withdrawal from Consideration
How can a contractor determine that an individual has indicated that he or she is no longer interested in the position?
The Internet Applicant rule explains that a contractor may conclude that an individual has removed himself or herself from the selection process or has otherwise indicated lack of interest in the position based on the individual’s express statement or on the individual’s passive demonstration of disinterest. For example, passive disinterest may be shown by:
- Declining a contractor’s invitation for a job interview;
- Declining a job offer; or
- Repeatedly failing to respond to a contractor’s telephone inquiries or emails asking about his or her interest in a job.
A contractor may also presume a lack of continuing interest based on a review of the job seeker’s expression of interest. For example, statements pertaining to (1) the individual’s interest in the specific position or type of position at issue, (2) the location of work, or (3) his or her salary requirements, may provide the basis for determining the individual is no longer interested in the position, provided that the contractor has a uniformly and consistently applied policy or procedure of not considering similarly situated job seekers.
What records must be retained about Internet Applicants who withdraw from consideration?
Expressions of interest considered must be retained from those who qualify as Internet Applicants, even if the Internet Applicant later withdraws from consideration. Other required records must be kept as well, including any statement of withdrawal, demographic data previously solicited from the individual and test results. However, the contractor is not obligated to solicit demographic data from the individual if it has not already done so.
Section 60-1.3(5) of the Internet Applicant rule states that one way a contractor can conclude that a job seeker is not interested in a position is the individual’s passive demonstration of disinterest shown through repeated non-responsiveness to inquiries from the contractor about interest in the position. How many times must a contractor attempt to contact an individual to conclude that he or she has shown disinterest through “repeated non-responsiveness to inquiries”?
A contractor may conclude that an individual has shown disinterest after two or more non-responses to inquiries by the contractor. A contractor may also determine that a job seeker has withdrawn from further consideration for the position based on information the individual provided in the expression of interest, such as salary requirements or preferences as to type of work or location of work.
What type of documentation will be necessary to verify the applicant withdrew from consideration?
The specific documentation necessary will be case specific. The Internet Applicant rule does not change what OFCCP would consider acceptable documentation under established applicant hiring analyses.
Is a telephone screen a reasonable step to determine if the individual is interested in the location, salary, or hours of the specific position before defining the individual as an Internet Applicant?
The Internet Applicant rule does not specify how or when in the selection process a contractor may screen for a job seeker’s interest in the specific position, keeping in mind that the interest screens should be facially neutral and consistently and uniformly applied to similarly situated job seekers. Note that the Internet Applicant rule requires maintenance of records identifying job seekers contacted regarding their interest in a particular position.
Can the employer exclude an individual from further consideration if the individual declines to complete the employer’s on-line employment application completely as instructed?
Yes, provided that the contractor has a uniformly and consistently applied policy or procedure of not considering similarly situated job seekers.
Must a contractor maintain expressions of interest in employment made through the Internet that do not meet the other three criteria contained in the definition of “Internet Applicant”?
No. Under section 60-1.12(a), contractors avoid this burden even if there are large numbers of expressions of interest, because contractors are not required to retain records regarding individuals who were never considered for a particular position. The rule generally requires a contractor to retain all the expressions of interest it considered, even those of individuals who are not Internet Applicants. However, when a contractor searches an external database, it is required to maintain only copies of resumes of those job seekers who met the basic qualifications for the position and who are considered by the contractor. Further, a contractor must retain records of all the basic qualifications used to develop a pool of Internet Applicants.
What records must be maintained from internal and external resume databases?
The Internet Applicant rule requires contractors to maintain any and all expressions of interest through the Internet or related electronic data technologies as to which the contractor considered the individual for a particular position, except for searches of external resume data bases discussed below. Contractors also are to maintain records identifying job seekers contacted regarding their interest in a particular position. In addition, for internal resume databases, the contractor must maintain a record of each resume added to the database, a record of the date each resume was added to the database, the position for which each search of the database was made, and corresponding to each search, the substantive search criteria used and the date of the search. Also, for external resume databases, the contractor must maintain a record of the position for which each search of the database was made, and corresponding to each search, the substantive search criteria used, the date of the search, and the resumes of any job seekers who met the basic qualifications for the particular position who are considered by the contractor. These records must be maintained regardless of whether the individual qualifies as an “Internet Applicant” under 60-1.3. Note that the final rule does not specify the form of the record. The format can be as detailed as a system that automatically stores each search or as basic as a simple screen shot printed out and maintained in a file cabinet.
Are contractors required to keep the resumes of the individuals identified from a database search if they did not consider them?
For searches of external databases, the answer is no. The only records a contractor would be required to maintain would be associated with the search itself. For internal databases, contractors are required to keep records of all individuals added to the databases. A resume downloaded from an external resume database into an internal resume database becomes an internal database resume.
Do contractors need to retain records of searches that do not produce any candidates with basic qualifications?
No. Contractors need to maintain only those search criteria that produce job seekers to be considered further in the selection process, and they do not need to maintain records of futile search criteria.
Some contractors search large, external resume databases that for a fee will maintain, on behalf of the contractor, copies of resumes identified by the contractor as meeting the basic qualifications for a particular position. Is it possible for contractors to comply with Internet Applicant recordkeeping without having resumes maintained on their behalf by the external resume database?
Contractors have several options for retaining copies of resumes identified through large external databases, without having the database company maintain copies of resumes on their behalf. For example, the contractor could: (1) use data management techniques to substantially reduce the pool of resumes meeting basic qualifications that are considered, and download the manageable number of resumes into the contractor’s internal resume database; (2) review resumes in the database to identify those meeting basic qualifications for a position and download those resumes into the contractor’s internal resume database; or (3) review resumes in the database to identify those indicating an interest in the particular position the contractor is seeking to fill and invite those job seekers to submit their own resume directly to the contractor’s internal resume database if the individual is interested in applying for the position. The contractor will need to maintain a record of all job seekers invited to apply for a position.
If a covered employer contracts with an employment agency to screen and refer job seekers using the employer’s selection procedures, what records must be maintained?
The contractor’s recordkeeping obligations are the same whether it screens job seekers itself or whether it contracts with an employment agency to screen job seekers on its behalf with the employer’s selection procedures. If an employer contracts with an employment agency to screen job seekers on its behalf, it would be prudent to address expressly in its contract with the employment agency the records the agency will be expected to maintain regarding searches made on the employer’s behalf. The Executive Order recordkeeping obligation belongs to the Federal contractor, not the retained employment agency, and it is the contactor’s responsibility to ensure that the agency keeps for it whatever records the contractor will be expected to have.
Can a contractor ask a recruiting firm to keep, on its behalf, the records required by the Internet Applicant Final Rule?
OFCCP’s recordkeeping rules, including the new Internet Applicant Final Rule, require Federal contractors and subcontractors to keep and maintain records regarding their selection process, including information about applicants and hires. The use of a recruiting firm in the hiring process does not relieve a contractor of its recordkeeping obligations under 41 CFR 60-1.12; the contractor will be held accountable if the specified records are not maintained.
A contractor may ask that a recruiting firm keep records on its behalf so that the contractor can use the records to monitor its personnel practices and demonstrate compliance to OFCCP. Keep in mind, however, that under the Internet Applicant Final Rule, the recordkeeping obligations belong to the Federal contractor or subcontractor. A contractor cannot delegate its obligations to another firm and would be held accountable if required records were not maintained. The Executive Order does not impose separate recordkeeping obligations upon recruitment firms with respect to their referral practices to Federal contractors and subcontractors. Accordingly, under the Executive Order, a recruiting firm’s obligations to retain records about referrals of job candidates to Federal contractor or subcontractor clients arise out of its agreements with those clients. Because contractors will be held accountable for keeping the required records, we suggest that recruiting firms and Federal contractors and subcontractors have a specific discussion about recordkeeping practices so that both parties understand what records must be retained, and by whom.
How can a recruiting firm that is not a federal contractor or subcontractor obtain a certificate indicating that its practices are in compliance with OFCCP’s recordkeeping requirements?
OFCCP does not issue compliance certificates. OFCCP determines whether Federal contractors and subcontractors are in compliance with laws enforced by OFCCP through compliance evaluations. OFCCP does not conduct compliance evaluations of companies that are not Federal contractors or subcontractors. OFCCP is available to offer compliance assistance on specific recordkeeping obligations. Interested individuals may contact OFCCP by email at OFCCP-Public@dol.gov.
Is there a new requirement under the Internet Applicant rule that the contractor must be able to identify, where possible, the gender, race, and ethnicity of each Internet Applicant?
The obligation to solicit demographic information from job applicants is not new. The Internet Applicant rule adds that a contractor is required to solicit and collect such data from each applicant or Internet Applicant, whichever is applicable to the particular position. Voluntary self-reporting or self-identification is still generally the preferred method for collecting data on race, ethnicity, and gender, but in situations where self-reporting is not practicable or feasible, observer information may be used to identify race, ethnicity, and gender.
When should contractors collect race, ethnicity, and gender data?
Under the Internet Applicant rule, contractors are required to solicit race, ethnicity, and gender data from all individuals who meet the definition of “Internet Applicant” or the traditional definition of “applicant” depending upon which standard is applicable to the particular position. OFCCP does not mandate a specific time or point in the selection process that contractors must solicit this information, so long as the information is solicited from all Internet Applicants or traditional applicants, as appropriate.
Since the rule does not establish a time or point in the process for soliciting race/ethnicity/gender data from Internet Applicants, can contractors wait until after the hiring decision, or after interviews, to collect this data from all Internet Applicants for the position?
Contractors have the obligation to solicit demographic information about applicants or Internet Applicants where possible. Solicitation of demographic information does not need to be made immediately upon determining that an individual is an Internet Applicant, but should not be delayed so long that it is no longer feasible to effectively solicit the information. If delayed too long, the contractor may miss its opportunity to collect demographic information when it was possible to do so and fail to collect the data required by the rule. OFCCP can require that the timing of the solicitation be changed to comply with the regulations. Whether the contractor has waited too long to solicit demographic data will depend on the facts, such as whether the delay caused the contractor to be unable to identify a substantial portion of its Internet Applicant pool, the length of time between identifying an individual as an Internet Applicant and making the final hiring decision, and whether the contractor had reason to know that the delay would decrease its ability to receive responses to its solicitation of demographic information. There may be circumstances when it would be permissible to delay solicitation of demographic data until the interview or hiring stages, and other circumstances when it would not be permissible to do so.
How long are contractors required to keep the information from the searches? From what date?
How long a record must be maintained depends on the size of a company and the contract it holds. As expressed in the implementing regulations at 41 CFR 60-1.12 (online at http://www.dol.gov/dol/allcfr/ESA/Title_41/Part_60-1/41CFR60-1.12.htm), for companies with fewer than 150 employees or a contract of at least $150,000, the record retention period is one year. Contractors with at least 150 employees and a contract of $150,000 are required to maintain the records for a period of two years. That time period is measured from the time the record was created or from the time of the personnel action associated with that record, whichever is later. As an example, for a selected applicant the retention period would be calculated from the date of selection rather than from the date of application. If a contractor repeatedly considered an individual’s resume, the retention period would start as of the last consideration given to that resume.
Note: where the contractor has received notice that a complaint of discrimination has been filed, that a compliance evaluation has been initiated, or that an enforcement action has been commenced, the contractor shall preserve all personnel records relevant to the complaint, compliance evaluation or enforcement action until final disposition of the complaint, compliance evaluation or enforcement action.
Can contractors make the self-identification of race, gender and ethnicity part of the registration process individuals complete to post their resume on a database?
Yes, provided that completing such self-identification is voluntary and failure to do so would not prevent the individual from posting his or her resume. The demographic information reported must be electronically maintained separately from the resume information that will be reviewed during the selection process and job seekers should understand this. For example, some contractors have developed “electronic tear-off sheets” for use with electronic applications that separate reported demographic information to be maintained for record keeping from electronic applications to be reviewed by contractors. OFCCP does not mandate a specific time or point in the employment selection process at which contractors must solicit this information, so long as the information is solicited from all Internet Applicants.
If a job fair recruiter suggests that a job seeker apply for a position through a specific requisition, and the job seeker fails to do so, is the job seeker an applicant or an Internet Applicant?
No, provided that the contractor has a uniformly and consistently applied policy or procedure of not considering similarly situated job seekers. Note that discrimination in recruitment also is prohibited by the Executive Order. It would be discrimination for a recruiter to treat job fair job seekers differently based on race, gender or ethnicity in terms of providing specific requisition information. [NOTE: THIS QUESTION IS NOT NEW AND WAS MOVED FROM THE WITHDRAWAL OF CONSIDERATION SECTION.]
If the Internet Applicant recordkeeping standards apply to hiring for a particular position and the contractor receives paper resumes for the position from job seekers at a career or job fair, does the contractor need to retain the paper resumes received?
The contractor needs to retain resumes only if it considers resumes received at the job fair for a particular position. The contractor need not retain any resumes if its consistently applied practice is not to consider paper resumes received at a career or job fair. For example, the contractor would not need to retain paper resumes offered at a job fair if it does not consider them and instructs all job seekers to post their resumes on the contractor’s web site and/or apply for particular positions on the web site. The contractor should take care to apply such a protocol in a uniform and consistent fashion. It is the contractor’s actual practice that determines whether the contractor has considered a resume. For example, if a contractor’s policy is to accept resumes only through its website, but its actual practice is to consider resumes received at a career or job fair as well, the contractor will be expected to retain both the resumes collected at job fairs as well as those submitted through the contractor’s website.
Must a contractor retain resumes when the contractor’s representative meets with students on campus recruiting trips to discuss general jobs for which a student may be qualified if the contractor advises all students they must apply through the contractor’s web site to be considered for a particular position?
A contractor must retain resumes for any job seeker it considered for a particular position. If a contactor’s representative meets with students to generally discuss the types of positions available with the contractor and advises all students that job seekers must apply through the contractor’s web site to be considered for particular positions, then the contractor is not considering the students for a particular position during the college recruiting visit and their resumes need not be retained. The contractor should take care to apply such a protocol in a uniform and consistent manner. It is the contractor’s actual practice that determines whether a contractor has considered a resume.
Some contractors search small, external “niche” or “diversity” resume databases that do not have the resources to maintain, on behalf of contractors, copies of resumes identified by contractors as meeting the basic qualifications for a particular position. How can contractors use these databases and comply with the resume retention requirement of the Internet Applicant rule?
Contractors have several options for retaining copies of resumes identified through small external databases. For example, the contractor could: (1) review all resumes in the database to identify those meeting basic qualifications for a position and download copies to an internal resume database maintained by the contractor; (2) invite all job seekers in the small external database to post their own resume in the contractor’s internal resume database through the contractor’s website; or (3) review resumes in the external database to identify those indicating an interest in the positions the contractor is seeking to fill and invite those job seekers to submit their own resume directly to the contractor’s internal resume database through the contractor’s website.
What do the Uniform Guidelines on Employee Selection Procedures (UGESP) have to do with the Internet Applicant final rule?
Nondiscrimination laws require employers to solicit race, gender, and ethnicity data from “applicants” under the Uniform Guidelines on Employee Selection Procedures (UGESP). UGESP Q&As assist employers in implementing UGESP. On March 4, 2004, the four UGESP agencies (the Equal Employment Opportunities Commission, the Department of Labor, the Department of Justice, and the Office of Personnel Management) published a proposed supplemental Q&A document in the Federal Register seeking comments under the Paperwork Reduction Act (69 FR 10152). That document has not been finalized and is still under consideration. In the coming months, the UGESP signatory agencies will continue to coordinate interagency discussions concerning the Q&As. In the Preamble to the March 4, 2004 document, the UGESP agencies expressly contemplated that “each agency may provide further information, as appropriate, through the issuance of additional guidance or regulations that will allow each agency to carry out its specific enforcement responsibilities.” (69 FR 10153).
Does the Internet Applicant final rule change the text of the UGESP or Executive Order 11246, as amended?
No. The Internet Applicant final rule does not change either the UGESP or the Executive Order 11246, as amended. Contractors have an obligation to refrain from unlawful employment practices regardless of how the term “Internet Applicant” is defined. The final rule only clarifies OFCCP’s regulations and procedures implementing recordkeeping under Executive Order 11246, as amended.
What are OFCCP’s procedures for evaluating Internet Applicant recordkeeping under the final rule (section 60-1.12) and UGESP?
To make clear OFCCP’s procedures regarding “Internet Applicant” recordkeeping under both rules, OFCCP has added a new regulatory provision, section 60-1.12(d). This provision explains that when evaluating whether a contractor has maintained information on impact and conducted an adverse impact analysis under UGESP (41 CFR Part 60-3) with respect to Internet hiring procedures, OFCCP will require only those records relating to the analyses of the impact of employee selection procedures on “Internet Applicants” as defined in the Internet Applicant final rule (and the impact of employment tests).
Where can I read or download a copy of the Internet Applicant final rule?
A Copy of this Final Rule is available on the Internet at http://www.dol.gov/esa/regs/fedreg/final/2005020176.htm or in PDF format at http://www.dol.gov/esa/regs/fedreg/final/2005020176.pdf. Copies in alternative formats may be obtained by calling OFCCP at (202) 693-0102 (voice) or (202) 693-1337 (TDD/TTY). The alternate formats available are large print.