Final Rule: OFCCP Defines "Internet Applicant"

Federal contractors are not ready!
By Dr. Lisa Harpe


Feb. 6, 2006, marked the Office of Federal Contract Compliance Programs' (OFCCP) deadline for the final rule regarding the definition of an Internet applicant. After a 90-day grace period, recently announced by the OFCCP, federal contractors will be cited if they cannot prove they are taking action to update systems to comply with the established procedures consistent with OFCCP's record keeping requirements.
Results from a recent Peopleclick survey show most federal contractors are not prepared to meet the OFCCP's regulations for the revised definition of an Internet applicant. In fact, 71 percent of survey participants said they are not prepared to meet requirements, and 38 percent of participants said they do not have a formal definition of an Internet applicant. In addition, on a scale of one to five, with five being extremely important, 66 percent of survey respondents rated the importance of the issue a five.

Definition Critical to Proper EEOC Tracking
The definition of an Internet applicant is important to employers for several reasons related to compliance with anti-discrimination regulations.

  1. Only an applicant may establish a prima-facie case of discrimination in hiring.
  2. An employer must be able to identify all applicants in order to conduct disparate impact studies on its hiring process.
  3. Federal regulations require employers to collect race and gender information on all applicants.

Past Rules Outdated
The Uniform Guidelines on Employee Selection Procedures (UGESP), published in 1978 by a consortium of federal agencies responsible for enforcing anti-discriminatory regulations, provided employers with specific guidelines for using assessments in the hiring process in a non-discriminatory manner. The UGESP introduced the 80 percent rule and validation to employers, attorneys and the courts. In 1979, the consortium published a series of questions and answers to further clarify the guidelines. Question and answer #15 defines two conditions for an individual to be considered an applicant:

  1. The individual must indicate an interest in employment.
  2. The individual must follow an employer's procedures.

For many years, this definition went unchallenged by employers or government agencies. With the Internet, however, recruitment changed dramatically. Job postings now elicit thousands of resumes sent electronically from all over the country. Government agencies began to question whether it was sufficient to collect equal employment opportunity (EEO) data at the interview after an employer had made one or several decisions about whether an individual job seeker was suitable for a position. An inevitable conflict arose between employers and government agencies regarding when race and gender information should be solicited. Was a person who posted his or her resume to an electronic job board an applicant? Was a person who submitted a resume via e-mail to an employer's HR department an applicant? What about the person that a recruiter found on a professional Web site?

The Definition
The OFCCP's final rule, published on Oct. 7, 2005, defines an Internet applicant as an individual who satisfies four conditions:

  1. The individual submits an expression of interest in employment through the Internet or related electronic data technologies.
  2. The contractor considers the individual for employment in a particular position.
  3. The individual's expression of interest indicates the individual possesses the basic qualifications for the position.
  4. 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.

How to Meet the Regulations
Employers can prepare to meet regulations in several ways.

  1. Employers should set specific policies and procedures related to compliance with the new regulations, such as policies indicating which expressions of interest will be considered. Employers may stipulate that individuals must indicate a specific position of interest, must apply electronically, or must provide particular information. This will limit applicants to those who follow these policies and procedures, as long as the policies and procedures are consistently applied.
  2. Employers need to ensure that they have the technology to gather and maintain expressions of interests, basic qualifications for all positions, search criteria and results, transaction dates, and resume information from internal or external sources of candidate information.
  3. Employers who use basic qualifications to pre-screen candidates should make sure that these qualifications are non-comparative, objective and related to position performance and meeting business goals.

HC

Dr. Lisa Harpe, is an industrial psychologist and senior consultant for the Peopleclick Research Institute (PRI), Peopleclick Inc.'s affirmative action research and compliance consulting arm. For more information, contact Kevin Starr, (919) 645-2937, Kevin.Starr@peopleclick.com.