In February 2006, the Office of Federal Contract Compliance Program’s (“OFCCP’s”) Final Internet Applicant Rule became effective.  Yet, who is an “applicant” under the Rule’s requirements continues to be a source of confusion.  Whether an individual qualifies as an “applicant” determines what a federal contractor’s data collection and record keeping obligations are with respect to that individual.  Furthermore, only “applicants” are entitled to sue for unlawful discrimination for failure to hire under federal and state laws.  Thus, it is essential that federal contractors understand who is an “applicant” to ensure compliance with the relevant OFCCP regulations.  (Please note that the terms “federal contractor” and “contractor,” as used in this Tip of the Month, refer to those government contractors covered by Executive Order 11246.)

Who is an “Internet Applicant”?

An individual must satisfy all four criteria listed below to be considered an “Internet Applicant”:

• First, the individual must submit an expression of interest in employment through the Internet or related electronic data technologies, such as e-mail, commercial and internal résumé databases, and employer Web sites.  However, the Internet Applicant rules also apply to expressions of interest through traditional means (i.e., paper résumés), if the contractor considers both electronic and traditional expressions of interest for a position.

• Second, the contractor must consider the individual for a particular position.  A contractor’s practice dictates which individuals it “considers.”  For example, if a contractor’s practice is to consider only electronic résumés, only those individuals who utilize the electronic procedure will be “considered” within the meaning of this term.  Similarly, a contractor may implement a practice that prohibits consideration of unsolicited résumés that are not submitted for a particular position, or that limits the number of expressions of interest to be considered using data management techniques that do not depend on assessment of qualifications.

• Third, the individual’s expression of interest must show that s/he meets all of the basic qualifications for the position that the contractor advertises as requirements for an individual to be considered, or, if not advertised, those requirements that the contractor establishes and records before considering anyone.  These basic qualifications must include non-comparative features, be objective, and be relevant to the particular position, and enable the contractor to meet business-related goals.

• Finally, the individual must not remove himself or herself from the selection process at any time prior to receiving an offer or otherwise indicate that s/he is no longer interested in the position, whether through an affirmative statement that s/he is no longer interested in the position, or passive failure to respond to employer follow-up inquiries or offers of employment.

See 41 C.F.R. § 60-1.3.

The OFCCP’s regulations regarding a contractor’s record keeping requirements for “Internet Applicants” explain that when the OFCCP is evaluating whether, with respect to Internet hiring procedures, a contractor has maintained information on impact and conducted an adverse impact analysis under the Uniform Guidelines for Employee Selection Procedures, it will require only those records relating to the analyses of the impact of employee selection procedures and employment tests on Internet Applicants.  See 41 C.F.R. § 60-1.12(d).  Thus, it is important for a contractor to be able to identify the pool of individuals who qualify as Internet Applicants, and to maintain that data in a separate file. 

Duty To Solicit and Maintain Gender, Race and Ethnicity Information

The Internet Applicant rule also requires a contractor to solicit gender, race and ethnicity information from all individuals who meet the above four requirements, and thus qualify as Internet Applicants.  See 41 C.F.R. § 60-1.12(c).  The OFCCP has not specified when this information must be solicited during the hiring process; however, it has indicated that while solicitation does not need to occur immediately upon determining an individual is an Internet Applicant, it should not be delayed to a point where it is no longer feasible to solicit the information. 

To the extent a contractor solicits gender, race and ethnicity information before narrowing down the expressions of interest to isolate only the Internet Applicant, this information should be maintained in a file separate from that being used in the selection process.  Contractors should develop a protocol to match self-identification forms with résumés, so that self-identification forms for those individuals who ultimately do not meet the definition of Internet Applicant, whether because they do not meet basic qualifications or otherwise remove themselves from consideration, can be removed from the Internet Applicant pool.  It is important to note, however, that any information collected prior to the individual being removed from the Internet Applicant pool (such as self-identification forms or test results) still must be maintained. 

When soliciting this demographic information, contractors must make clear to the individual being solicited that the information is being provided on a voluntary basis only, the information will be kept confidential, refusal to provide it will not subject the applicant to any adverse treatment, and the information will not be used in a manner inconsistent with the law.  Furthermore, as mentioned above, this demographic information should be maintained separate from the files containing an individual’s résumé, relevant test results, or other materials being used in the selection process.

NOTE:  Different rules govern an invitation to self-identify as an individual with a disability and/or disabled veteran.  OFCCP regulations require covered contractors to invite applicants who are covered veterans or disabled to self-identify after making offers of employment and before the applicant begins work.  See 41 C.F.R. §§ 60-250.42.-300.42.  For more information, please see our March 2009 Tip of the Month regarding federal contractors’ obligations to individuals with disabilities, available here.

Record Retention Requirements

Contractors also must maintain records pertaining to all Internet- or related electronic data technologies-based “expressions of interest” which the contractors collected as they “considered the individual for a particular position.”  See 41 C.F.R. §§ 60-1.12.  Contractors must retain these records even if the individual does not ultimately satisfy the definition of Internet Applicant.  Thus, it is important for contractors to retain separate files for individuals who qualify as Internet Applicants, versus those who only satisfy the first two prongs of the Internet Applicant requirements (i.e., expressed interest and were considered by the contractor). 

Additionally, certain internal and external résumé database records must be maintained even if the applicant is not an Internet Applicant.

As to internal résumé databases, the contractor must:

• Maintain a record of each résumé added to the database;

• A record of the date each résumé was added to the database;

• The position for which each search of the database was made; and

• Corresponding to each search, the substantive criteria used and the date of the search.

The record keeping requirements associated with internal résumé databases are triggered when the first two criteria are satisfied (i.e., a job seeker submits an expression of interest through the Internet and the contractor considers that individual for a particular position).

As to external databases, the contractor must maintain:

• A record of the position for which each search of the database was made;

• Corresponding to each search, the substantive search criteria used;

• The date of the search; and

• The résumés of job seekers who met the basic qualifications for the particular position who are considered by the contractor, regardless of whether the individual qualifies as an Internet Applicant.

The record keeping requirements associated with external résumé databases attach after the first three prongs of the Internet Applicant definition are satisfied; that is, the considered individual also must meet the basic qualifications for the position.

Thus, despite the previous discussion about contractors’ flexibility in defining basic qualifications and the corresponding control over how many candidates are ultimately Internet Applicants, a contractor still may be obligated to retain records for some individuals even though they may not ultimately be included in the applicant flow report and adverse-impact analysis. 

Conclusion

Federal contractors should ensure that they are complying with the OFCCP’s applicant tracking requirements, as well as the various other regulations, particularly in this time of increased scrutiny and enforcement efforts by the OFCCP.  The above is not meant to be a comprehensive discussion of the detailed obligations of federal contractors.  If you have any questions regarding your responsibilities, please call your Proskauer relationship attorney, or any of the attorneys listed below.

 

Special thanks to associate Kristine K. Huggins for her assistance in drafting this Client Alert.