The OFCCP’s Final Definition of an Internet Applicant

Last year, I wrote an article examining some of the implications of the OFCCP’s proposed definition of an Internet applicant. Approximately one and a half years after issuing a proposed definition of electronic applicants, the Office of Federal Contract Compliance Programs (OFCCP) issued its final ruling on October 7, 2005. The definition will go into effect February 6, 2006, thereby giving organizations a bit of time to work out details as to how they will meet the standards in their electronic recruitment programs. The purpose of this article is to briefly describe the final definition, explain some key issues related to this definition, and discuss the implications for employers who are covered by the OFCCP.

Who Is an Internet Applicant?

In its final ruling, the OFCCP carefully considered public comments on the proposed definition, making a few changes in the final version of it. Although the final definition is quite similar to the proposed definition, there are some significant differences. The final definition states that an Internet applicant is an individual who meets the following criteria:

  1. The individual submits an expression of interest in employment through the Internet or related electronic means.
  2. The company considers the individual for employment in a particular position.
  3. The individual’s expression of interest indicates that he or she meets the basic qualifications for the position.
  4. The individual at no point in the recruitment process (prior to receiving an offer of employment) indicates that he or she no longer is interested in the position.

In terms of the “basic qualifications for the position,” as indicated in the third criterion, a basic qualification must meet the following conditions:

  • It must be a non-comparative feature of the job seeker. (For example, if the job candidate has three years of work experience, a comparative feature might be that the job candidate has among the highest number of years of work experience.)
  • It must be objective. (The job candidate has “a degree in accounting” would be objective, for example, while the job candidate has “a good degree” would be subjective.)
  • It must be relevant to performance and enable the company to accomplish business-related goals.

Implications for Organizations

The final definition clarifies, or was modified to address, various issues and concerns raised by commentators. Several of these issues are discussed next:

Q: Will this definition be used to determine whether discrimination has occurred in the hiring process? In defining an Internet applicant, the OFCCP states that this definition is for recordkeeping and data collection in connection with Executive Order 11246 only. It was not intended to be used for the purposes of determining discrimination. Moreover, the OFCCP clearly states that Census and other labor market data will be used to determine whether discrimination has occurred. Indeed, the OFCCP cites a court case indicating that the application process may not necessarily reflect the potential applicant pool, in that qualified individuals might be discouraged from applying because of qualification requirements that are themselves discriminatory. Organizations covered by the OFCCP should realize that compliance with this new definition does not necessarily mean that they have avoided discrimination. Many other factors need to be considered, such as the match of the workforce to relevant labor market data, the relevance of the job requirements, and so forth.

Q: Can a company still use “basic qualifications” when doing a resume database search? A concern that was raised in connection with the proposed definition was that it seemed to focus on a resume generation approach, whereby the employer advertises a position, listing specific basic requirements. The proposed definition was unclear as to how basic qualifications would function in a resume review approach, wherein rather than advertising a position, an employer searched an existing database to determine whether there are applicants who meet basic requirements. The final definition explicitly states that “basic qualifications” means qualifications that the employer has established in advance of such a search by making and maintaining a record of the required qualifications prior to such an endeavor. Thus, basic qualifications can be applied even when the company is using a resume review approach.

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Q: Must a company include unsolicited resumes? The final definition explicitly states that a company may establish a protocol or standard procedure that individuals must abide by in order to be considered applicants. This may include excluding unsolicited resumes that are not submitted for a specific position. Of course, having such a protocol means that all managers must stick with this protocol; exceptions may raise questions as to whether someone who you are excluding is really an applicant or not.

Q: What about an application process that includes both internet and traditional applicants? A concern raised regarding the proposed definition was a situation where some applicants applied over the Internet, while other applicants mailed in an application through the traditional system (i.e., “snail mail”). The final definition offers several examples where this might happen. Very briefly, where a company allows for both Internet applications and traditional applications, the Internet applicant definition is to be used to cover both kinds of applicants.

Q: How will the OFCCP’s definition fit with other definitions? You may recall that last year, the U.S. Equal Employment Opportunity Commission (EEOC), in conjunction with the Department of Labor, the Department of Justice, and the Office of Personnel Management, announced a proposed definition concerning who is a job applicant in the context of the Internet and related technologies. At this time, however, the final definition from this group has not been announced. It remains to be seen how that definition will fit with the OFCCP’s definition.

Implications for Organizations

If your organization is covered by the OFCCP, you should consider the following suggestions:

  • Since most organizations rely heavily on the Internet, it is critical to ensure that record-keeping reflects the OFCCP’s definition.
  • Make sure that your applicant tracking systems are able to properly track applicants based on these criteria.
  • Establish standard procedures and protocols for recruitment, particularly in regards to Internet applicants (e.g., how are unsolicited resumes handled?).
  • Train hiring managers so that they follow your organizations’ procedures and protocols. Explain what “basic requirements” mean in this context. Remind hiring managers that exceptions to standard procedures can cause major problems during an OFCCP audit.
  • Audit your recruitment and hiring procedures to make sure that these processes are in compliance with all OFCCP and EEOC rules and regulations.

In sum, whether you are a recruiter, an HR manager, or an attorney responsible for employment discrimination issues, you will need to stay tuned to developments in this area. For more information on the OFCCP’s definition, you should go to the Federal Register here.

Michael Harris, Ph.D. (mharris@easiconsult.com) is the vice president of litigation support services at EASI*Consult, LLC, a management consulting firm that provides expert assessment solutions and litigation support. Dr. Harris has served as an expert witness and consultant in a variety of employment discrimination cases, including race, age, and disabilities lawsuits. Dr. Harris has published extensively in the human resources management area, including two books: The Employment Interview Handbook and HRM: A Practical Approach. He has delivered training on interviewing, diversity, "train-the-trainer," and related topics. He is currently one of two chief contributors to George's Employment Blawg, a blog devoted to HR and HR law issues. Dr. Harris holds a professorship in the College of Business Administration at the University of Missouri-St. Louis. He can also be contacted at 1.800.922.EASI, 314-803-6618 (mobile).

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