Who’s an Internet Applicant? Recruiters Should Be Ready to Answer

On October 7, 2005, the Office of Federal Contract Compliance Programs (OFCCP) released its final rule regarding the definition of an Internet applicant. As mentioned in a November 2005 article by Dr. Michael Harris, the final rule presents four criteria for a job seeker to be considered an applicant, as follows:

  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.

Based on the four criteria, contractors should develop their own definition of an applicant, which determines when they must solicit race and gender information — EEO data — for reporting the gender and racial makeup of the applicant pool. In addition, the final rule specifies recordkeeping requirements for employers using the Internet or related electronic data technologies for recruiting and hiring. Federal contractors must comply with the rule by February 6, 2006. Even though the final rule allows companies to restrict the size of their applicant pool through their definition of an Internet applicant, employers must carefully develop and implement policies and procedures which will support this definition, train recruiters on the new policies and procedures, and monitor adherence to the new policies and procedures. Companies that have allowed recruiters wide latitude in their day-to-day practices should develop standardized policies and procedures for using the Internet and related technologies for recruiting and hiring.

The following represent some recommended steps that employers can take to prepare for the February 6, 2006 deadline to comply with the final rule.

1. Identify which expressions of interest will be considered.

Although the final rule does not include the criteria that individuals must follow an employer’s policies and procedures for indicating an interest in employment, the final rule does allow employers to establish such practices regarding who will be considered. Employers who wish to restrict the size of the applicant pool may want to implement standard processes that limit the acceptable type of expression of interest and the acceptable method of submission. Some employers, for example, may decide that they will only accept a completed application form; others may accept resumes but only those that include three references; others may accept any type or form of resume. Employers may decide to restrict the method of submission to the company website; others may allow submission through email or faxes. However, recruiters must be consistent. Suppose an employer states that only expressions of interest submitted through the company’s website will be considered. If a recruiter later accepts a faxed resume, all faxed resumes would also be “considered.” The final rule’s recordkeeping requirements oblige employers to save all expressions of interest considered for a particular position.

2. Decide whether you will include basic qualifications in your definition.

Although employers consistently requested that the definition of an Internet applicant include a provision that applicants must meet minimum qualifications, employers should contemplate the time and effort required to incorporate basic qualifications into their definition. Establishing basic qualifications for all positions may be a monumental task for some employers. According to the final rule, basic qualifications must be advertised or established prior to recruiting for a particular position. Basic qualifications must be non-comparative, objective, and job-related. In addition, the final rule clearly states that tests are not basic qualifications. Given the OFCCP’s statements that it will evaluate the adverse impact of basic qualifications using external sources of data such as the census or legal precedent, employers should either take the steps required to establish non-comparative, objective, job-related basic qualifications for all positions or else exclude this criterion from their definition. Excluding this criterion from the definition simply requires the employer to collect and report EEO data on a larger applicant pool.

3. Decide whether you will use work preferences to identify those not interested in a position.

Individuals who withdraw from the recruiting and hiring process or otherwise indicate disinterest in further consideration for a position do not have to be reported as part of the applicant pool. The final rule indicates that an individual’s stated work preferences may be used to gauge interest in a position. For example, if a person’s salary, travel, or work location preferences do not match the position requirements, the employer may categorize this individual as not interested in the position and remove them from the applicant pool. However, recruiters must apply this criterion consistently. Suppose an employer states that an individual’s salary preferences will be compared to the position salary to identify those interested in the position. If a recruiter decides to bring in a person for an interview even though his/her salary preference exceeds the position salary, all individuals whose salary preferences do not meet the position salary must be included as applicants.

4. Establish policies and procedures around search behavior.

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Based on the final rule, an employer considers a job seeker when it compares the job seeker’s qualifications to the position requirements. When recruiters search internal or external databases and identify potential applicants for a position as those who show up in the search results, they have considered everyone in the searched database. Among other items, all search criteria and the dates of searches must be saved, along with the position for which the search was conducted. The OFCCP could request information on searches conducted for any position to look for signs of disparate impact or treatment. If a recruiter uses different search terms at different times or with different resume databases to fill one specific position, the recruiter has treated job seekers for the same position differently. If this treatment places females or minorities at a disadvantage in the hiring process, the OFCCP may file a claim of disparate treatment against the employer. Search terms applied consistently to all job seekers for a particular position may still have a disparate impact on females or minorities. Using geographic searches or searches for specific education, such as science degrees, may result in a disproportionate number of minorities or females being excluded from further consideration. If the employer can not justify the use of the search terms as job related, the OFCCP may file a claim of disparate impact against an employer. Finally, initial searches to narrow the applicant pool should be based solely on basic qualifications. Recruiters will need to know the basic qualifications for each position and acceptable search terms to reflect these qualifications. They will also need training on how to ensure that the appropriate records are saved related to each search.

5. Make decisions about data management techniques.

The final rule acknowledges that a recruiter may conduct a search on basic qualifications and still end up with an unmanageable number of job seekers. In this case, employers may use data management techniques to further narrow the potential applicant pool. Data management techniques include race- and gender-neutral methods to identify a subset of job seekers that are unrelated to the assessment of job qualifications. Examples include sorting expressions of interest by submission date and picking the first fifty or using a random sampling technique to identify a subset of individuals. Decisions about which methods to use and when to use these methods should be established, and recruiters should receive appropriate training.

6. Monitor adherence to policies and procedures.

As mentioned, a recruiter’s actual practices may invalidate stated policies and procedures. Employers should establish some method to ensure that all policies and procedures are being followed. The recommended steps above represent only a few of all of the issues facing employers who want to comply with the OFCCP’s final rule on the definition of an Internet applicant. Given the myriad ways of using technology to recruit and hire for open positions, employers will need to carefully develop policies and procedures for using recruiting and hiring technology in a manner consistent with the final rule in order to maintain compliance with federal recordkeeping and reporting regulations.

Note: This article is provided for informational purposes only and is not intended to offer specific legal advice.

Dr. Lisa D. Grant Harpe (lisa.harpe@peopleclick.com) is an industrial psychologist and senior consultant for the Peopleclick Research Institute, Peopleclick's affirmative-action research and compliance consulting arm. Harpe joined Peopleclick from PRI Associates, a consulting firm acquired by Peopleclick in 2000. Prior to that, she was the first industrial psychologist for the North Carolina Highway Patrol, in which she implemented, managed, and evaluated promotion and performance appraisal systems for the organization's 1,200 officers.

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9 Comments on “Who’s an Internet Applicant? Recruiters Should Be Ready to Answer

  1. ‘If a recruiter uses different search terms at different times or with different resume databases to fill one specific position, the recruiter has treated job seekers for the same position differently’

    When you are using a search engine that does its own ‘thinking’, how can anyone determine what the actual criteria were that generated any given hit(s) ?

    We have been planning some modifications to our own search engine to meet this challenge starting Feb 6, 2006; how will other ATS vendors deal with this ?

  2. A. The OFCCP’s Final Definition of an Internet
    Applicant.— Dr.Michael Harris
    B. Who’s an Internet Applicant? Recruiters Should Be
    Ready to Answer —- Dr. Lisa D. Grant Harpe

    Thanks for the above articles.
    A few quick questions:

    1. Does this compliance regulation apply to ALL i.e. even those recruiters working for and in the Private sector ?

    2. How does this affect recruiting companies located say in Canada but doing business in the USA ( Private and Government)?

    3. How is the enforcement proposed to be done if at all it is applicable to ALL?i.e. a private recruitement agency working on behalf a private sector client—can the applicant sue the agency on grounds of discrimination? Can he / she sue the company, say, in Canada?

  3. Srini,
    Those are awesome questions. Please allow me an opportunity to answer and I will try to be as brief as possible.

    Unfortunately many recruiters are unaware that Employment laws apply to TPR?s more so than they do to Actual Companies. In some states some of the federal and state employment laws may not apply to a company based upon the number of employees they have in a particular radius, but this does Not hold true for recruiters.

    Another thing to recognize is that State Laws are often more stringent than Federal Laws. It does not matter which country or state you may physically be in, if one is doing business nationally or internationally the state/country that has the more stringent federal laws will apply. For EG. If your candidate is in N.Y, the company is based in IL, you are in OR, and the position and interviews are in AL, then the EEOC can decide which state laws can prevail. As a recruiter outside of America, the U.S laws can automatically prevail even if the candidate is NOT American, and the Company is Not American, but shall be working for an office based in the U.S. (these laws do also protect Illegal Residents in the U.S. as well)

    In regards to who brings the suits ? a perfect example will be 2 recent lawsuits settled in Buffalo N.Y in November. 2 Candidates/employees complained to the EEOC against a Staffing Company and two of their clients with Bias Based on Race, Sex, Age, Disability and National Origin – the EEOC filed the Lawsuit to the Buffalo courts on behalf of the employees. The case was settled out of court. The Staffing Firm will share the financial burden with the two clients. They will be have the larger financial burden as they were two separate incidents, with 2 separate clients.

    Finally, it may be interesting to note that The EEOC has decided as of the 1st of this year to beef up their Agency Presence. In a recent conversation with them last year they noted that they utilize the internet and testers to target companies that discriminate. Yes they actually do employ individuals to search the internet. Job listings, forums, blogs and such like.

    Testers are individuals that the EEOC employs to apply for job for work at random locations either in person, by paper or electronically. They will be qualified for the positions, but the differing factor will be race, age or such like. More about testers can be found at http://www.workforce.com article Should HR Managers Worry About ‘Testers’?

    Hope this answers your questions.

  4. In answer to your questions:

    1. The published rule applies only to federal contractors. However, if you are a private company who supplies candidates or candidate information to a federal contractor, your client should expect you to comply with the record-keeping and reporting regulations as well. Also, we are still waiting for the UGESP taskforce, including the EEOC, to publish its final definition of an Internet applicant. This would apply to all private employers with at least 15 employees.

    2. The applicability of the regulations depends on where the employees are located. If you are a Canadian company or recruiter filling US positions, the regulations apply. If you are filling Canadian jobs, the regulations do not apply.

    3. Enforcement is the responsibility of the OFCCP. In all likelihood, the OFCCP would audit a federal contractor’s recruiting and hiring procedures. In this situation, all sources of candidates would be under scrutiny including private or non-US recruiting firms.

    I hope that this was helpful.

  5. Hi: Just a point of clarification. The final Office of Federal Contract Compliance Programs (‘OFCCP’) regulations regarding Internet applicants that were published on October 7, 2005 apply to federal contractors of the U.S. government. If you are interested in the breadth of their application, I would recommend contacting the OFCCP directly. Additionally, I suspect that the agency will be issuing further clarification regarding these regulations in the near future.

    Additionally, it is important to note that Equal Employment Opportunity Commission (‘EEOC’), as well as the Department of Labor, Department of Justice and the Office of Personnel Management have not adopted the OFCCP’s definition of an Internet applicant yet. Back on March 4, 2004 these four agencies proposed rules regarding the definition of an Internet applicant under the Uniform Guidelines on Employee Selection Procedures. However, these agencies have not concluded what the specific definition will be. Thus, from an EEOC perspective, the definition of a job applicant, Internet or otherwise, has not been modified.

    From a pragmatic perspective, I suspect that the EEOC and other three agencies will probably adopt a definition of Internet applicant that does not materially differ from that adopted by the OFCCP. However, we will need to wait until the publication of the final regulations to confirm this to be accurate.

    I trust this information is helpful.

  6. Hi

    May I thank all of you — Karen,Lisa and David —profusely for all the time and effort put in answering the questions raised by me?

    A belated Happy,Prosperous and Healthy New Year to all of you.

    Warm Regards

  7. On January 20, 2006, the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) (the agency charged with enforcing federal affirmative action compliance), proposed a rule that would eliminate the Equal Opportunity Survey (the ‘Survey’) requirements presently imposed upon all non-construction federal contractors

    the recently-released results of an OFCCP-commissioned study have revealed that the predictive power of the Survey to identify contractors who are out of compliance is ‘only slightly better than chance.’ As such, the ‘OFCCP has [now] concluded that the Survey misdirects valuable enforcement resources’ and does not meet any of the objectives set forth in the 2000 rule.

    See more at –
    http://www.jacksonlewis.com/legalupdates/article.cfm?aid=887

  8. How do companies that want to source talent ahead of having an opening, or in anticipation of having future openings, remain in compliance.

    Do you HAVE to have an open requisition for a truly ‘open’ position?

    Can you post a position on your web site which isn’t actually vacated and begin accepting internet resumes in anticipation of the future?
    Lisa Ridgeway
    Corporate Recruiter
    Milgard Manufacturing

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