New Rule on 'Internet Applicant'

The Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) oversees compliance with the equal opportunity and affirmative action requirements applicable to all government contractors. The OFCCP is charged with enforcing Executive Order 11246, which prohibits federal contractors from discriminating against applicants on the basis of race, color, religion, sex, or national origin. The Order also requires contractors to use affirmative action so that equal opportunity is available for all phases of employment. As such, contractors must retain all applicant-related company records as well as other employment records. In particular, contractors are required to maintain records of 'applicant flow data' by soliciting gender, race and ethnicity information from all applicants. If a contractor fails to comply with the rules issued by the OFCCP, it will be subject to disciplinary action, ranging from citations and economic fines to debarment.

When the requirement to retain applicant data was first instituted in 1965, virtually all applicants applied by traditional methods, ie, in person by completing a job application or submitting a resume with a letter of interest. Thus, the retention of visual data regarding an applicant's race, gender, and ethnicity was a relatively manageable project. With the advent and increased use of computers, including personal computers, the vast majority of job applicants now interface with potential employers via the Internet or through electronic data transmissions such as e-mail.

The OFCCP's New Rule

On Feb. 6, 2006, the OFCCP's final rule regarding the definition of 'Internet Applicant' went into effect. Federal contractors, however, have a 90-day grace period ' or until May 8, 2006 ' before the OFCCP will begin to issue citations to contractors who fail to comply with the new rule. This article summarizes the principal requirements of the OFCCP's new Internet Applicant rule, and provides recommendations to federal contractor employers to facilitate compliance with this new rule.

As noted above, the OFCCP's new rule was developed to address federal contractors' increasing reliance on global online career and recruitment resources. The rule provides that an individual is an 'Internet Applicant' if:

• 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 inter-est indicates that he or she 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.

The new rule allows contractors to make identifications for Internet applicants based on visual observations for those applicants who decline to self-identify.

Narrowing the Pool of Applicants

If the expressions of interest for a particular position are too large, employers are permitted to use data management techniques to limit the pool of applicants. The data management techniques cannot depend on an assessment of qualifications. Employers may use facially neutral techniques, however, that will not produce disparate impact based on race, gender or ethnicity.

What Are 'Basic Qualifications'?

Under the new rule, 'basic qualifications' mean:

• Qualifications that the contractor ad-vertises (eg, posts on its Web site a description of the job and the qualifications involved) to potential applicants that they must possess in order to be considered for the position, or
• Qualifications for which the contractor establishes criteria in ad-vance by making and maintaining a record of such qualifications for the position prior to considering any expression of interest for that particular position if the contactor does not advertise for the position but instead uses an alternative device to find individuals for consideration (eg, through an external resume database), and
• Qualifications that meet all of the following three conditions:
• The qualification must be non-comparative features of a job seeker;
• The qualifications must be objective; they may not depend on the contractor's subjective judgment; and
• The qualifications must be relevant to performance of the particular position and enable the contractor to accomplish business-related goals.

Removal of an Applicant from Consideration

A contractor can assume that an applicant has removed himself or herself from consideration:

• If the individual has indicated that he or she is no longer interested in the position for which the contractor has considered him or her, based on the individual's express statement that he or she is no longer interested; or
• On the individual's passive demonstration of disinterest shown through repeated non-responsiveness to inquiries from the contractor about the position in questions (eg, fails to respond to telephone calls, letters, etc.); or
• Based on information the individual provided in the expression of interest (eg, salary requirements, preference as to type of work or location of work) provided that the contractor has a uniformly and consistently applied policy and procedure of not considering similarly situated job seekers.

Records Government Contractors Must Retain

The following records must be retained irrespective of whether the individual fits squarely within the definition of an Internet Applicant:

• 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, such as on-line resumes and internal resume databases;
• All records identifying job seekers contacted regarding their interest in a particular position;
• For internal resume databases (such as monster.com or hotjobs.com), a record of each resume that was added to the database, the date it was added, 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; and
• For external resume databases, a re-cord 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 job seekers who met the basic qualifications for the particular position who are considered by the contractor.

How Government Contractors Can Facilitate Compliance

Government contractor employers are encouraged to consider the following suggestions to facilitate compliance with the OFCCP's new Internet applicant rule:

• Provide training to Human Re-sources and recruitment staff to fa-miliarize them with the OFCCP's new rule and its requirements;
• Review recruiting policies and adjust procedures as necessary to comply with the new rule;
• Review recordkeeping policies and data retention systems to ensure that no technological barriers to compliance exist; and
• Utilize the OFCCP product functionality tools recently created by several online job search engines, such as monster.com and hotjobs.com, to assist Human Resources professionals and recruiters with retention of Internet applicant data. Encourage Human Resources professionals to educate themselves about these new and useful tools.

Albert J. Solecki, Jr. is a partner in the Labor and Employment Law Group at Goodwin Procter LLP and Chairman of its New York Office. Laurie E. Holsey is an associate in Goodwin Procter's Labor and Employment Law Group, resident in the firm's New York office.

The Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) oversees compliance with the equal opportunity and affirmative action requirements applicable to all government contractors. The OFCCP is charged with enforcing Executive Order 11246, which prohibits federal contractors from discriminating against applicants on the basis of race, color, religion, sex, or national origin. The Order also requires contractors to use affirmative action so that equal opportunity is available for all phases of employment. As such, contractors must retain all applicant-related company records as well as other employment records. In particular, contractors are required to maintain records of 'applicant flow data' by soliciting gender, race and ethnicity information from all applicants. If a contractor fails to comply with the rules issued by the OFCCP, it will be subject to disciplinary action, ranging from citations and economic fines to debarment.

When the requirement to retain applicant data was first instituted in 1965, virtually all applicants applied by traditional methods, ie, in person by completing a job application or submitting a resume with a letter of interest. Thus, the retention of visual data regarding an applicant's race, gender, and ethnicity was a relatively manageable project. With the advent and increased use of computers, including personal computers, the vast majority of job applicants now interface with potential employers via the Internet or through electronic data transmissions such as e-mail.

The OFCCP's New Rule

On Feb. 6, 2006, the OFCCP's final rule regarding the definition of 'Internet Applicant' went into effect. Federal contractors, however, have a 90-day grace period ' or until May 8, 2006 ' before the OFCCP will begin to issue citations to contractors who fail to comply with the new rule. This article summarizes the principal requirements of the OFCCP's new Internet Applicant rule, and provides recommendations to federal contractor employers to facilitate compliance with this new rule.

As noted above, the OFCCP's new rule was developed to address federal contractors' increasing reliance on global online career and recruitment resources. The rule provides that an individual is an 'Internet Applicant' if:

• 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 inter-est indicates that he or she 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.

The new rule allows contractors to make identifications for Internet applicants based on visual observations for those applicants who decline to self-identify.

Narrowing the Pool of Applicants

If the expressions of interest for a particular position are too large, employers are permitted to use data management techniques to limit the pool of applicants. The data management techniques cannot depend on an assessment of qualifications. Employers may use facially neutral techniques, however, that will not produce disparate impact based on race, gender or ethnicity.

What Are 'Basic Qualifications'?

Under the new rule, 'basic qualifications' mean:

• Qualifications that the contractor ad-vertises (eg, posts on its Web site a description of the job and the qualifications involved) to potential applicants that they must possess in order to be considered for the position, or
• Qualifications for which the contractor establishes criteria in ad-vance by making and maintaining a record of such qualifications for the position prior to considering any expression of interest for that particular position if the contactor does not advertise for the position but instead uses an alternative device to find individuals for consideration (eg, through an external resume database), and
• Qualifications that meet all of the following three conditions:
• The qualification must be non-comparative features of a job seeker;
• The qualifications must be objective; they may not depend on the contractor's subjective judgment; and
• The qualifications must be relevant to performance of the particular position and enable the contractor to accomplish business-related goals.

Removal of an Applicant from Consideration

A contractor can assume that an applicant has removed himself or herself from consideration:

• If the individual has indicated that he or she is no longer interested in the position for which the contractor has considered him or her, based on the individual's express statement that he or she is no longer interested; or
• On the individual's passive demonstration of disinterest shown through repeated non-responsiveness to inquiries from the contractor about the position in questions (eg, fails to respond to telephone calls, letters, etc.); or
• Based on information the individual provided in the expression of interest (eg, salary requirements, preference as to type of work or location of work) provided that the contractor has a uniformly and consistently applied policy and procedure of not considering similarly situated job seekers.

Records Government Contractors Must Retain

The following records must be retained irrespective of whether the individual fits squarely within the definition of an Internet Applicant:

• 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, such as on-line resumes and internal resume databases;
• All records identifying job seekers contacted regarding their interest in a particular position;
• For internal resume databases (such as monster.com or hotjobs.com), a record of each resume that was added to the database, the date it was added, 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; and
• For external resume databases, a re-cord 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 job seekers who met the basic qualifications for the particular position who are considered by the contractor.

How Government Contractors Can Facilitate Compliance

Government contractor employers are encouraged to consider the following suggestions to facilitate compliance with the OFCCP's new Internet applicant rule:

• Provide training to Human Re-sources and recruitment staff to fa-miliarize them with the OFCCP's new rule and its requirements;
• Review recruiting policies and adjust procedures as necessary to comply with the new rule;
• Review recordkeeping policies and data retention systems to ensure that no technological barriers to compliance exist; and
• Utilize the OFCCP product functionality tools recently created by several online job search engines, such as monster.com and hotjobs.com, to assist Human Resources professionals and recruiters with retention of Internet applicant data. Encourage Human Resources professionals to educate themselves about these new and useful tools.

Albert J. Solecki, Jr. is a partner in the Labor and Employment Law Group at Goodwin Procter LLP and Chairman of its New York Office. Laurie E. Holsey is an associate in Goodwin Procter's Labor and Employment Law Group, resident in the firm's New York office.